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2017 (9) TMI 1077 - Tri - Insolvency and BankruptcyCorporate insolvency procedure - application under Sec.9 of Insolvency and Bankruptcy Code, 2016 - pre-existing dispute between the parties - Held that:- In this case admittedly the petitioner has not given any document to prove the date of service of notice on the corporate debtor. Operational creditor has also failed to file affidavit to show that there is no compliance of sub-clause (c) of Clause (5) Rule 9. There is also no compliance of sub-clause (d) of Clause (5) of Rule 9, because operational creditor has not filed any affidavit to specify whether he has received any notice of dispute from the corporate debtor. Compliance of this provision is mandatory and not discretionary. Since the operational creditor has failed to comply with the statutory provision so on the above grounds the petition cannot be admitted. It is pertinent to mention that this petition has been filed on account of unpaid salary dues from May, 2016 to February, 2017 and total claim of the operational creditor is ₹ 35,00,000/-. It is also pertinent to mention that the claim of the petitioner is based on the basis of order passed by NCLT on 18/8/2016. This clearly shows that the claim of the operational creditor is mainly on the basis of existing dispute between the parties, which is pending in NCLT. Sub-section 3(b) of Sec.9 provides that operational creditor has to file an affidavit to the effect that there is no notice given to the corporate debtor relating to dispute of unpaid operational debt. In this case the operational creditor has not submitted any affidavit in compliance of sub-clause (3)(b) of Sec.9 and the documents which have been filed by the corporate debtor in reply clearly indicates that dispute is pending between the parties before the NCLT and claims of operational creditor is based on the order of the NCLT in that case. In case of pre-existing dispute, provision of Sec.9 of IB Code cannot be invoked. It is thus clear that the application under Sec.9 is not maintainable on account of pre-existing dispute between the parties.
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