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2020 (8) TMI 390 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Operational Debt - Petition was dismissed by Ld. Adjudicating Authority holding that the Applicant due to its inconsistent conduct has been unable to establish that the amount being claimed by it was owed by the Respondent and that the Respondent has defaulted in the payment - HELD THAT:- It is found out that only ₹ 22,56,833/- was due to be paid to the Appellant and he has also handed over the cheque but Appellant has refused to accept the said cheque. i) Admittedly, the ‘Operational Debt’ is exceeding ₹ 1 lakh. ii) The Appellant sent notice under Section 8 of the IBC to the Respondent and the Respondent have accepted and was not disputed the amount. iii) The Appellant have also produced documentary evidence in the support of operational debt before the Ld. Adjudicating Authority and this Appellate Tribunal. iv) In view of the aforesaid, admitted fact, the Ld. Adjudicating Authority committed error of record and not considered the judgment of the Hon’ble Supreme Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, [2017 (9) TMI 1270 - SUPREME COURT] wherein Hon’ble Supreme Court laid down the law regarding powers of Adjudicating Authority passing the order of under Section 9 of the IBC. v). The Ld. Adjudicating Authority failed to appreciate the documents placed on record along with Application under Section 9 of the ‘IBC’. vi). From the record as we find that 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. Case remitted to the Ld. Adjudicating Authority for admitting the application under Section 9 of the ‘IBC’ after Notice to both the parties and further to enable the ‘Corporate Debtor’ to settle the matter prior to the admission - appeal allowed by way of remand.
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