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2020 (3) TMI 1381 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt abd dispute or not - Time limitation - HELD THAT:- It is also a matter of record that the Petitioner could not be able to produce acknowledgement of service of the statutory demand notice of Section 8 of the I.B. Code. The present petition and the petitioner has stated that although it sent to the registered office of the company through a speed post. However, the same came back undelivered with a remark, “concerned official not available.” Hence, the petitioners took such plea that it tantamount to avoidance of accepting the service of demand notice. Hence, it is to be treated as deemed service - this Adjudicating Authority under the discipline of the I.B. Code is not expected to adjudicate such issue of disputed facts or to deal with such controversy while disposing of the present I.B. Petition. It is evident that the Corporate Debtor has raised Debit Note on 16.11.2015 and also got tested the quality of steam coal supplied. Further, the Petitioner in its petition in Column part4 (1)(b) Bullet Point No. (7) has stated that it made quite delayed payment on 25.11.2014. Such payment was received after rigorous follow up by the Operational Creditor. Thereafter, the Corporate Debtor did not even make a single payment to the Operational Creditor. Therefore, such raise prima-facie doubt about some pending dispute with regard to the quality of goods and or on existing dispute on terms and condition payment thereof, which are undisputedly of prior to issuance of the demand notice and filing of the present petition. The CIRP can be triggered in respect of Corporate Debtor only in situation where defence taken by the Corporate Debtor is found spurious and feeble. Which is not the case here as the Corporate Debtor has furnished the debit note and as well as copy of Coal Analysis Report based on lab test of coal supplied and the same was found of poor and inferior quality which are prima-facie evidence of dispute and such disputed question of facts are required to be agitated before a proper forum of Law, as it is out of purview of the I.B. Code to be adjudicated by this Adjudicating Authority. The present appeal is found to be filed beyond three (03) years from the date of default or the last payment received because, the Petitioner, itself in ‘Part- 4,’ Column 1(b) of the present petition has pleaded that the Corporate Debtor made the last payment of ₹ 1500 Lakhs to the petitioner on 25.11.2014, that is too after a rigorous follow up by the Operational Creditor with the Respondent/ Corporate Debtor that means that there was some pre-existing dispute as well as the present petition is filed on 09.05.2018, which is beyond the prescribed limitation of three (03) years. The present I.B. Petition is not maintainable on the ground of pre-existing dispute as well as being hit by limitation - Petition dismissed.
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