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2020 (1) TMI 1419 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of its dues - corporate debtor has filed a reply to the petition stating therein that the goods supplied by the operational creditor were defective and not of standard quality - service of demand notice - Cheque stated to have been given as security - rebuttal of presumption or not - existence of debt and dispute or not - HELD THAT:- Since the e-mail dated January 16, 2014 specifically notes that "in the last batch of carbon fibre reinforced laminates, several imperfections were found", it can only be taken that the other consignments were defect-free. Further, in the rejoinder, the operational creditor has taken a specific stand that the issue of defective quality of supplies has been raised in only one out of twenty-seven consignments, and that this issue was also resolved. Even if the issue is assumed to be unresolved, this would only cover one consignment, and there is no reason why the other consignments ought not to be paid for, especially when seen in the context of the specific stand of the operational creditor that after the issue raised in the e-mail of January 16, 2014 four more consignments were supplied to the corporate debtor. Cheque stated to have been given as security - HELD THAT:- This cannot be taken to be a valid defence. In terms of section 139 of the Negotiable Instruments Act, 1881, there is a presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. While this is no doubt a rebuttable presumption, the presumption stands unless the contrary is proved. The burden of proof is on the corporate debtor. The petition made by the operational creditor is complete in all respects as required by law. It clearly shows that the corporate debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the petition - Petition admitted - moratorium declared.
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