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2019 (12) TMI 1528 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The Agreement under Clause 7 (e) clearly says that the payment for services should be made immediately failing which it carries interest at the rate of 15% p.a. will be charged until the date of settlement. The invoices issued also contains a condition that the payment should be made immediately, and it did not refer the element of interest in the bills. However, the Petitioner charged @ 18% p.a., which is also contrary to the term and conditions of the Agreement and also invoices in question. It is also relevant to point out here that, there are 36 invoices starting from 22.02.2018 to 12.11.2018 for total 36 invoices amounting to ₹ 52,94,136.38/- which includes principal amount of ₹ 39,52,469/- and interest of ₹ 13,41,667.38/-. Therefore, the Petitioner failed to point out that whether the Agreement in question, which is valid for period of 2 years was further extended or not. The Petitioner without resorting correlates the claims and Statutory Demand notice in question. The Statutory notice cannot give cause of action unless it's supported by debt, which is legally payable by the other party. Therefore, the Petitioner failed to make out any case with regard to the alleged outstanding amount, which is under dispute, and it is based on invalid Agreement. Therefore, the Tribunal cannot go roving enquiry with regard to the alleged claim, under the provisions of the Code, which is summary in nature. The claim made in the instant Petition is not only contrary to the terms of Agreement but also in serious dispute. The Petitioner failed to respond to various emails sent by the Respondents and to correlate the bills. It is not in dispute that the Agreement in question has already expired during 2017 itself, and there is a refundable security deposit of ₹ 12,00,000/- which is stated to have forfeited in lieu of outstanding amount. Even as per Agreement, rate of 15% p.a. will be charged until the date of settlement. However, the Petitioner has claimed 18% p.a. - The Adjudicating Authority should be satisfied before initiating CIRP that all extant provisions of Code in the light of object of Code stand fulfilled. As stated supra, initial debt it is based on lapsed Agreement and the claim also in serious dispute. Therefore, the instant Company Petition is filed in order to recover the alleged disputed outstanding amount, instead of seeking to initiate CIRP on justified reasons. It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. Un-disputed claim is sine qua non for initiating CIRP - The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. The instant Company Petition is filed other than the object of the Code with intention to recovery of the alleged outstanding amount - the Petitioner has failed to make out any case so as to initiate CIRP as prayed for and thus, it is liable to be dismissed. Petition dismissed.
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