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2021 (3) TMI 1347 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - pre-existing dispute or not - dishonor of cheque - appropriate forum - HELD THAT:- The E-mail communications between the operational creditor and the Corporate Debtor clearly establishes the fact that there was pre- existing dispute between both the parties. The E-mail communication trail starting from date 28.02.2018, 03.07.2018, 05.07.2018 till 26.09.2018 between the Operational creditor and corporate debtor substantiate the fact that there was delay in supply of material to the Corporate Debtor due to which the Corporate Debtor was forced to purchase the goods at a higher price from the other sellers. The fact that a meeting was called upon on dated 16.02.2018 to address the issues relating to delay in supply and debit notes being issued by the corporate debtor substantiate the fact that there was a pre-existing dispute between the parties prior to the issuance of demand notice. It is clear from the decision of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [2017 (9) TMI 1270 - SUPREME COURT] that the dispute must exist before the receipt of demand notice. Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice. The E-mail communication trail starting from date 28.02.2018, 03.07.2018, 05.07.2018 till 26.09.2018 between the Operational creditor and corporate debtor substantiate the fact that there was delay in supply of material, the same was duly acknowledged by the Operational Creditor in the Email communications. The operational creditor regarding the issue of dishonoring of cheque has the option to file Criminal proceedings under section 138 of Negotiable Instruments Act, 1881, before the appropriate forum for the recovery of the same. Since there is a preexisting dispute between the parties, we have no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016 - Application dismissed.
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