Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (1) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 1153 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor defaulted in paying the claim despite after receipt of Section 8 notice served upon the Corporate Debtor - Operational creditors - suppression of documents seminal to decide the penalty and correspondence exchanged long prior to issuing section 8 notice - it is claimed that the amount retained by the Corporate Debtor is largely on account of penalty against the short supplies, and thus cannot be released to Operational Creditors - pre-existing between the parties before issual of Section 8 notice or not. HELD THAT:- It is an admitted fact that from the Operational Creditor side that the Corporate Debtor replied to its Section 8 notice dated 12.04.2020, on 21.04.2020 i.e. within 10 days from the date of receipt of notice, in the reply, the Corporate Debtor has again disputed that the Operational Creditor is liable to pay penalty, therefore it could not be decided who is liable to pay whom, because if the penalty is more than the unpaid invoice amount retained by the Corporate Debtor, the Operational Creditor would be liable to pay the penalty remained due and payable by the Operational Creditor - the Operational Creditor counsel has filed rejoinder setting up a new case that since the Performance Bank Guarantee has not been retained, it is to be construed that no dues are outstanding against the Operational Creditor, therefore whatever defence taken up by the Corporate Debtor, the operational creditor says, could not be considered as dispute is in existence before receipt of Section 8 notice by the Corporate Debtor. On record it is evident that final bill has not been prepared, penalties not discounted, the operational creditor has not deputed its authorized representative for finalization of final bill, therefore due itself cannot be assumed unless final bill is prepared, therefore question of default will not arise, in any event, dispute is preexisting between the parties as on the date section 8 notice the corporate debtor received, therefore it is a clear case hit by pre-existing dispute. From the Operational Creditor side contention is dispute is frivolous, from the Corporate Debtor side contention is dispute is pre-existing - the Petition shall be dismissed on the ground that Petition is hit by pre-existing dispute - petition dismissed.
|