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2017 (11) TMI 240 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - proof of default committed by the Corporate Debtor namely DCM International Ltd. in a sum of ₹ 1.00 crore plus interest at 12% p.a - non refund of security deposit amount given by the Operational Creditor to the Corporate Debtor under lease deed - Held that:- Any amount claimed as due by a person representing as 'Operational Creditor' should demonstrate firstly that the said amount in default falls within the definition of 'claim' as defined in section 3(6). Such a claim, secondly should be capable of being treated as a 'debt' as defined under section 3(11) of IBC,2016 and finally the 'debt' should fall within the confines of Section 5(21) of IBC,2016 (i.e.) it should be capable of being treated as an 'Operational Debt' and such an operational debt must be owed by the Corporate Debtor to a creditor who can then be considered as an Operational Creditor as defined under Section 5(20) of IBC,2016. Further, as recently in the matter of Divine Infracon (P.) Ltd. [2017 (11) TMI 194 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI] has held after a detailed discussion that in relation to transaction of immovable property the same cannot be considered as a transaction falling under the term 'operation' and 'Operational Debt' unless such a transaction having a correlation of direct input to the output produced or supplied by the Corporate Debtor and hence we do not have any hesitation looking at any way in holding that the petitioner will not fall under the definition of Operational Creditor and the claim which is sought to be made can not be considered as an Operational Debt. Further, from the records it is also seen that by sending the notice of dispute dated 3.5.2017 by the Corporate Debtor in relation to the notice of demand dated 31.3.2017 as sent by the Petitioner, a dispute has been projected on the ground that a portion of the properties leased to the Operational Creditor was not given in time by it even after its termination which has occasioned loss of use of the property by the Corporate Debtor giving rise to financial loss to it. As held by the Hon'ble Supreme Court of India in Mobilox Innovations Private Limited v. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT OF INDIA] it is not necessary that a claim of dispute as raised by the Corporate Debtor will ultimately succeed is not required to be established before this Tribunal in order to bring it within the meaning of dispute. A pre-existence of dispute which has plausible chance of success is sufficient and that the ground of dispute which is taken should not be mere sham or elusive. From the perusal of the notice of dispute dated 3.5.2017 we are satisfied that a plausible dispute has been raised by the Corporate Debtor vis-a-vis the Operational Creditor. Taking all the above into consideration we are not inclined to admit the Petition and the Petition is hence dismissed but without costs.
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