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2019 (7) TMI 1188 - AT - Insolvency and BankruptcyAdmissibility of petition - initiation of CIRP - application rejected on the ground that the claim of the Appellant falls within the ambit of ‘disputed claim’ - Section 8(1) of the ‘I&B Code’ - HELD THAT:- From bare perusal of the impugned order dated 19th September, 2018, it will be evident that the Adjudicating Authority have noticed the aforesaid disputed fact to come to the conclusion and hold that the claim amount raised by the Appellant is a disputed claim - In an application under Section 9, it is always open to the ‘Corporate Debtor’ to point out pre-existence of dispute. It is to be shown that the dispute was raised prior to the issuance of demand notice under Section 8(1). In Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [2017 (9) TMI 1270 - SUPREME COURT], the Hon’ble Supreme Court held that the ‘existence of the dispute’ and/or the suit or arbitration proceeding must be pre-existing – i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. Thus, the existence of dispute must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice. If it comes to the notice of the Adjudicating Authority that the ‘operational debt’ is exceeding ₹ 1 lakh and the application shows that the aforesaid debt is due and payable and has not been paid, in such case, in absence of any existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid ‘operational debt’, the application under Section 9 cannot be rejected and is required to be admitted. The Respondent has defaulted to pay more than ₹ 1 Lakh and in absence of any pre-existing dispute, and the record being complete, the application under Section 9 preferred by the Appellant was fit to be admitted - appeal allowed.
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