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2019 (1) TMI 1935 - 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 - HELD THAT:- On careful perusal of the documents it is noticed that two out of the seven cheques issued by the Corporate Debtor to the Operational Creditor were never presented to the Bank for encashment, poses a serious doubt whether the cheque was for the payment for the services provided by the Operational Creditor or not. Also, the contention of the Operational Creditor is different in Form-5, from what was submitted in rejoinder. Form-5 says that 7 cheques were issued and only a payment of ₹2,00,000/- has been received, whereas, in the rejoinder the Operational Creditor submits that ten cheques have been received out of which, 3 have been cleared, 2 were not deposited and 5 were dishonoured. It seems as if the Operational creditor is not clear regarding the debt to be claimed and kept on changing its stance time and again. In the present case, it seems that the Petitioner is not sure about its claims and have mentioned different and inconsistent calculations of the alleged excess amount. The correct position of the outstanding debt has not been revealed to this Bench till date. It is clear that a “dispute” as to the existence of the amount of debt is in existence, and the same has been raised by the Corporate debtor time and again. There was a dispute or misunderstanding between the parties. Rather, in the present case, it is demonstrated that this is not a case where merely feeble legal argument was made; but this is a case where sufficient evidences are placed on record to substantiate the dispute time and again. On separation of grain from the chaff, it is evidenced that this is not a case of raising a spurious defence by the debtor, but a duly substantiated case of ‘existence of dispute’. Having considered the totality of the facts and circumstances mentioned above, the existence of dispute prior to issue of Demand Notice is established. Accordingly, the Petition does not deserve Admission. Finally, a conclusion is hereby drawn that this is not a case where the impugned Debt and the alleged default was free from existence of plausible dispute or merely a feeble argument; but duly supported by corroborative evidences, therefore, cannot be proceeded under the Insolvency Code so as to commence CIRP by declaring the Debtor Insolvent or Bankrupt. However, it is worth to put on record that the scope and jurisdiction of this Tribunal is limited and also confined to the provisions of Insolvency Code only while dealing with Petition filed under Section 9, therefore, the impugned Debt in question does not fall within those ambits. This Petition does not survive under the Insolvency Code, hence hereby “Dismissed”.
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