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2020 (10) TMI 331 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - dues arising from the ‘Leave and Licence Agreement - Operational Debt or not - existence of Pre-Existing Dispute prior to the issuance of the Demand Notice or not - HELD THAT:- The subject lease rentals arising out of use and occupation of a cold storage unit which is for Commercial Purpose is an ‘Operational Debt’ as envisaged under Section 5 (21) of the Code. Further, in so far as the facts and attendant circumstances of the instant case on hand is concerned, the dues claimed by the First Respondent in the subject matter and issue, squarely falls within the ambit of the definition of ‘Operational Debt’ as defined under Section 5 (21) of the Code. Pre-existing dispute or not - HELD THAT:- It is evident that the communication relied upon by the Counsel for the Appellant does not establish any substantial ‘Pre-Existing Dispute’. Applying the test of ‘existence of a dispute’ it is evident that without going into merits of the disputes, the argument raised by the Appellant cannot be construed as a plausible contention requiring further investigation or an assertion of facts supported by evidence. The defence is spurious, mere bluster and not a tenable one in the eye of law, in the considered opinion of this Tribunal. A dispute does not truly exist in fact between the Parties and, therefore, this Tribunal holds that the communication on record specifically the letter dated 19.09.2018, addressed by the Appellant themselves prior to the issuance of the Demand Notice clearly establishes that there is a ‘Debt due and payable’ and there is no ‘Pre-Existing Dispute’. This Tribunal holds that there is no illegality or infirmity in the Impugned Order of the ‘Adjudicating Authority’ in admitting the Application - Application admitted - appeal dismissed.
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