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2020 (7) TMI 795 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- The ledger shows that ₹ 30,00,000/- was given as loan to the corporate debtor, hence the contention that it is advance towards commission is falsified. It is to be noted that for another sum of ₹ 10,00,000/-paid as commission advance on the same day, TDS of ₹ 1,00,000 is deducted, whereas ₹ 30,00,000 has been accounted as loan and no TDS has been deducted. Had it been an advance commission as contended by the petitioner, TDS of ₹ 4,00,000 would have been deducted. Hence the amount of ₹ 30 lacs paid is clearly a loan as depicted in the ledger. Hence the contention of the petitioner that ₹ 30,00,000/- is an advance towards commission payable to the corporate debtor is falsified. When the amount paid is a loan, the same does not fall under the definition of the Operational debt as provided under Section 5 (21) of the code which provides that “operational debt” means a claim in respect of provision of goods or services including employment or debt in respect of the payment of dues arising under any law for the time being enforce and payable to the central government, any state government or any local authority” - the amount claimed is not an operational debt and the petition is not maintainable. Since the corporate debtor submitted that this payment of ₹ 30,00,000/- is towards part satisfaction of the Memorandum of Understanding (MoU) dated 24/08/2013, both in this proceedings, which was initiated well before the present petition, there is a pre-existing dispute in respect of the claim and hence the dispute raised by the Corporate debtor will squarely fall under the definition of dispute as defined under Section 5 (6) of the code which provides that “dispute”, includes a suit or arbitration proceedings relating to (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty.” Petition dismissed.
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