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2020 (8) TMI 422 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of dispute - application rejected on the ground that the claim of the Appellant falls within the ambit of ‘Existence of Dispute’ - HELD THAT:- The Adjudicating Authority have noticed that 75 MTs cargo is lost due to the moisture and remaining 30GMT cargo in rejected condition is still under the possession of appellant, which appears to be a disputed matter, came 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). 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. From the record, it is found 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 - application admitted - moratorium declared.
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