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2020 (9) TMI 1075 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- Reading Section 9 with Section 5(20) and 5(21) of the Code, application under Section 9 of the Code can be filed by a person who has a claim in respect of the provision of goods and services. The application is based on the operational creditor neither receiving payment from the corporate debtor nor notice of dispute under Section 8(2) of the Code. There is no provision in Section 9 of the Code read with Section 5(20) and Section 5(21) of the Code for an application being moved to the Tribunal on the basis of a decree. The decree may be evidence of non-payment or of default but by itself, a decree cannot give rise to and form the basis of an application under Section 9 of the Code. Section 3(10) of the Code gives the definition of creditor but it is only an operational creditor who has the right to file an application for initiating CIRP in the case of the corporate debtor. The submissions made by ISMT Limited cannot therefore, be accepted. Time Limitation - HELD THAT:- The payment by HIM Teknoforge Limited was made conditionally and was subject to acceptance of the outstanding amount payable being only ₹ 7,31,813/-. This condition was not accepted by ISMT Limited which filed an application under Section 9 of the Code for the amount of ₹ 83,12,760.91 with interest. The conditional payment cannot therefore, have the effect of being an acknowledgment of the debt claimed of ₹ 83,12,760.91. Moreover, even if it is presumed to be an acknowledgment of debt, it is beyond the period of three years from the date on which the debt became due and therefore, a fresh period of limitation is not available - plea of the learned senior counsel for HIM Teknoforge Limited that the present petition is not filed within the limitation period is accepted. The application under Section 9 of the Code is therefore, rejected on the ground that it is barred by limitation and alternatively, on the ground that notice of dispute was received by the operational creditor - Application disposed off.
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