Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (10) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 66 - 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 - HELD THAT:- Mere plain reading of the provision show that Section 5(6) define the Dispute whereas Section 8(2)(a) and (b) deals with existence of Dispute and mode to prove the repayment debt and that is the reason the Operational Creditor submitted that Corporate Debtor has taken both the plea i.e. Existence of Dispute as well as repayment of debt. As per the definition of Dispute, it is either existence of amount of debt or quality of goods or service or breach of representation or warranty - So far the contention of the Operational Creditor that Corporate debtor has not raised the quality of goods therefore, it is not a dispute is concerned, it is true that Corporate debtor has not raised the quality of goods but they raised the existence of amount of debt, which in our opinion, come under the definition of Dispute and this has been raised by the Corporate Debtor prior to the issuance of Demand notice and also in reply to the Demand Notice as required U/S 8(2)(a) of IBC. Operational Creditor has not stated anywhere about the notices, which are issued prior to the issuance of demand notice and it has come to the notice of Operational Creditor that Corporate Debtor is claiming upon the documents and on the basis of that documents, Corporate Debtor claimed that statement of accounts is confirmed and several correspondence have been made and there is no debt due as on 01.04.2018. Operational Creditor has not explain why they have not sent the rejoinder to the reply filed by the Corporate Debtor in response to the legal notice and why they have not disclosed about these documents in the main application, which have been referred in the reply to the legal notice dated 11.08.2018 rather Operational Creditor raised this issue that these documents are forged and fabricated, when Corporate Debtor appeared and filed the reply and enclosed all the documents along with the reply. In the present case, the Corporate Debtor has enclosed documents prior to the issuance of demand notice and all these documents referred by the Corporate Debtor in the reply to the legal notice dated 28.08.2018, therefore, before issuance of demand notice or before filing this application, Operational Creditor was aware with the facts that the Corporate Debtor are placing reliance upon these documents and on the basis of that Corporate Debtor claimed that there is no outstanding due, which is payable by the Corporate Debtor to the Operational Creditor as confirmation of accounts have been settled between the parties and one M/s. Prominent Metals Pvt. Ltd. But Operational Creditor has not referred this facts in the application but after filing of the Reply by the Corporate Debtor this plea has been taken by the Operational Creditor that those documents are forged and fabricated and signed by the persons, who are not authorised to sign, therefore, we can safely say the documents upon which Corporate Debtor placed reliance their genuineness is disputed by the Operational Creditor themself. There are pre-existing dispute raised by the Corporate debtor and even Operational Creditor raised the dispute regarding the genuineness of documents - Application dismissed.
|