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2019 (9) TMI 1614 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHIMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Privity of contract between applicant or not - existence of debt and dispute or not - HELD THAT:- There is no document placed on record with respect to any agreement between applicant and corporate debtor - The statutory auditor has personally appeared and admitted that corporate debtor had not availed any services from the applicant and he in good faith to help the applicant, had allotted some work to the applicant and undertook to resolve the issue. The affidavit of the statutory auditor has also been placed on record. On perusal of the record, a conclusion can be drawn that the statements of the applicant is self-contradictory as in the application by the applicant it has been averred that the applicant was engaged by statutory auditor whereas in the affidavit, the applicant has claimed to render the services upon the request of corporate debtor - it can be inferred that there was no privity of contract between applicant and respondent. Further the corporate debtor has raised dispute of locus of the applicant. It is very essential to understand that the intent of the legislature is to be kept in mind that this CIRP can be triggered only where the prima facie debt is payable and default has occurred. In the application under section 9 the ‘existence of dispute’ has to be developed in and only on satisfaction that corporate debtor is unable to pay debt, then the CIRP can be triggered and not that simply any amount being crystalized as payable. Therefore, in the present case there is no recovery proceeding payable and cannot be used as debt and brought under umbrella of this Code. Application dismissed.
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