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2018 (3) TMI 318 - Tri - Insolvency and BankruptcyInitiation of corporate insolvency process - Whether failure to send reply to the demand notice received by one of the directors of the Corporate Debtor is fatal? - Held that:- Petitioner’s firm has some control over the respondent through 3rd petitioner and it has come out in evidence that petitioner’s firm is a party to the MOU above referred. It is a circumstance doubting the contact of Mr. Samrat Gupta who has got intimate friendship with the 3rd petitioner. So deliberate neglect on the side of him in not sending the reply to the demand notice received by him cannot be ruled out. Whether he has taken a decision reply on the basis of any decision approved by the board of directors of the respondent company is a question cannot be answered in this case. It requires larger evidence. Ld. Counsel also produced a copy of FIR at the time of final hearing. The respondent herein this case succeeded in establishing a case of certain control over the respondent company by the petitioner through the 3rd respondent. The unholy nexus between Mr. Samrat Gupta and the 3rd petitioner is probable to believe in the above said circumstance. In the above said peculiar circumstances we find failure on the side of the respondent in not sending reply is not fatal. This point is answered accordingly. Whether Corporate debtor succeeded in establishing existence of any dispute? - Held that:- There exist a genuine dispute prior to the filing of the application and before the date of issuance of the demand notice. It appears to us that the contentions taken by the respondent are not feeble, mala fide or hypothetical. Existence of MOU in between the parties and pendency of Arbitral proceedings seen not mentioned in the application. Existence of MOU is an important document produced on the side of the respondent. It deals with sharing of profits and loss between Corporate Debtor and Operational Creditor. How it would be shared or not is not a question to be answered in the case in hand. The terms in between the parties as per MOU may have some relevancy in regards the settlement of the claim in hand. Non-mentioning the above said fact is therefore amount to suppression of material facts. Thus we are inclined to reject this application.
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