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 387 - 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 - whether this adjudicating authority is competent to decide the question regarding the point raised by the petitioner in a proceeding, which is initiated under Section 9 of the IBC? - HELD THAT:- The demand notice was issued on 04.07.2019 and reply to the demand notice was sent on 15.07.2019 and we further find that at page 4, the applicant has not enclosed, tracking report of the delivery of the demand notice to show when the demand notice was delivered, of course, it is dated 14.07.2019 but in the absence of the delivery report and tracking report to show, when it was delivered, we had no option but to hold that the reply of the demand notice is filed within 10 days from the date of receipt of demand notice and this fact has not been disputed by the petitioner. Also, the respondent has raised the dispute prior to the delivery of demand notice. While considering the application under Section 9 the Adjudicating Authority is not competent to examine whether the dispute is according with the law or not. These are the facts which are required to be decided by the Court having the jurisdiction to try the suit, while exercising under Section 9 the Adjudicating Authority is required to see only whether there is existence of dispute between the parties or the record of pendency of suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute or not. We are unable to accept the submission of the Ld. Counsel for petitioner that this adjudicating authority is competent to decide the point which has been raised by the Ld. Counsel for petitioner in course of arguments, whether the respondent is competent to forfeit the amount in terms of forfeiture clause or not? Since, there is existence of dispute which has been raised before the issue of demand notice and the documents which enclosed with the application, shows that there is existence of dispute. Therefore, in view of Section 9(5)(ii), the present application is not maintainable. Application dismissed.
|