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2020 (8) TMI 382 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - Dishonor of cheque - grievance of the Appellant is that the said application was filed before the Adjudicating Authority despite the fact that Section 8(1) Demand Notice was not delivered to it and there was a pre-existing dispute in the matter - HELD THAT:- In the present case, the 1st Respondent / ‘Operational Creditor’ has come out with the plea that the letters dated 2.7.2016, 27.7.2016,25.08.2016 and 27.01.2016 are believed to be false and they are concocted, fabricated and manufactured for the purpose of this case to take an illegal defense. Further, the 1st Respondent / ‘Operational Creditor’ has taken a stand that the signatures and the Company’s seal on the letter / reply dated 27.7.2016 was fabricated by the ‘Corporate Debtor’. Therefore, this Tribunal is of the considered view that the plea of the 1st Respondent / ‘Operational Creditor’ that the alleged forged letters were created in a single night for taking an illegal defense of dispute and the ‘Corporate Debtor’ is liable to be tried for ‘perjury’ can be pleaded / agitated before the Competent Forum. The 1st Respondent / ‘Operational Creditor’ had accepted the payments of ₹ 4,51,84,594/- in respect of supplies and full and final payment of ₹ 12/- lakhs on 17.5.2017. No tangible / substantial material / evidence is produced on the side of the Appellant to show that it was a final payment in full quit and nothing remains to be paid by the 2nd Respondent/ Corporate Debtor. Therefore, this Tribunal negatives the plea of the matter had been settled and no sum remains to be paid by the 2nd Respondent /‘Corporate Debtor’ to the 1st Respondent/Operational Creditor other than the purported full and final payment of ₹ 12 lakhs made on 17.5.2017. Dishonor of Cheques - HELD THAT:- The 1st Respondent / ‘Operational Creditor’ had initiated Proceedings under Section 138 of the N I Act, 1881 against the ‘Corporate Debtor’. Although, the Appellant has taken a plea that these cheques were issued by the ‘Corporate Debtor’ for some other project and not for the project concerning the subject matter in issue, the same is not established by the Appellant to the subjective satisfaction of this Tribunal. If a ‘Debt’ is due and payable one to the ‘Operational Creditor’ by the ‘Operational Debtor’ then the said ‘Debtor’ will squarely come within the purview of the ingredients of the definition of Section 5(21) of the Code. In a given case, if it is exhibited that there is a clear default of minimum of ₹ 1/- Lakh, then the dispute in regard to quantum of the amount claimed can not be an hindrance in admitting an Application/ Petition filed either under Section 7 or 9 of the I & B Code - The aspect of ‘Addition of Parties’ in a given proceeding is within the exclusive domain of a concerned Court/ Tribunal. A party/ parties are not to be added /arrayed as parties in a given application to introduce a fresh/new cause of action. In as much as the 2nd Respondent /’Corporate Debtor’ had committed default as per definition Section 3(12) of the Code which defines ‘default’ and in spite of notice the 2nd Respondent had failed to effect the payments due to 1st Respondent / ‘Operational Creditor’ and an amount of ₹ 61,24,637/- was due as on date of filing of the application before the Adjudicating Authority coupled with interest @ 24% p.a., this ‘Tribunal’ without any haziness comes to a consequent conclusion that the view arrived at by the Learned Adjudicating Authority that the 2nd Respondent/Corporate Debtor had committed default and ultimately admitting the application filed by the 1ST Respondent/ Operational Creditor is free from any legal infirmities - Resultantly, the present Appeal fails and the same is accordingly dismissed but without costs. Appeal dismissed.
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