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2020 (10) TMI 738 - 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 application is filed by the proprietary firm or proprietor of the firm? - HELD THAT:- In this proceeding, we noted that the application is filed by one Mr. Sanjay Kumar, the proprietor of M/s. Sri Ram Constructions (in Form-5). Notice under section 8 of IBC was also sent by Mr. Sanjay Kumar, proprietor on behalf of the firm. So, on facts the order relied on by the Ld. Sr. Counsel for the corporate debtor is not applicable. Moreover, we have elaborately discussed the provisions of section 5(20) read with section 3(23) of IBC and held that even application filed by the proprietary firm through its proprietor is maintainable - On the basis of facts in this case and evidence on record, we hold that this application is filed by the proprietor of the firm, Mr. Sanjay Kumar and not by proprietary firm, Sri Ram Constructions. Whether the application is defective as has been filed clubbing different causes of action? - HELD THAT:- The letter of award is only one and it is dated 12.01.2016. Under that letter of award, three work orders were issued. However, date of completion of work/delivery as mentioned as one and same, i.e. 31.08.2016. So, for operational creditor, the cause of action to initiate this proceeding against the corporate debtor had arisen on 31.08.2016 and it was one and the same. In view of this, we hold that the ruling of the Hon'ble NCLAT is not applicable on facts - this application is not defective because of different causes of action are clubbed together - answered in negative. Whether there exists pre-existing dispute about the work carried by the operational creditor and hence, application is not maintainable? - HELD THAT:- The operational creditor did not disclose all above correspondences while filing application under section 9 of IBC against the corporate debtor. Be that as it may, there is sufficient evidence on record to show that there exists dispute in between the operational creditor and the corporate debtor pending even prior to the demand notice under section 8 of IBC sent by the operational creditor to the corporate debtor. That dispute appears to be relating to both, services rendered by the operational creditor and the amount claimed towards operational debt. To resolve that dispute in between the parties full-fledged trial in the form Civil Suit is required. We, in our limited jurisdiction, cannot resolve such dispute - there is a pre-existing dispute pending in between the operational creditor and the corporate debtor about the work carried by the operational creditor and the amount claimed towards operational debt - Answered in affirmative. Application disposed off.
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