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2021 (5) TMI 271 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - application has been filed on 29.05.2018 whereas period of supplies and invoices is 28.08.2015 to 31.03.2016. However, in the Form No. 5, it is mentioned that debt fell due between May 2015 to March, 2016 though two invoices are of the date of 28.08.2015 - typographical error - pre-existing dispute or not - Service of demand notice - principles of parity - HELD THAT:- It is an admitted fact that this application has been filed by the Resolution Professional and subsequently, pursued by liquidator of the Corporate Debtor and this has been done with the approval of the CoC. The amount claimed in this application is more than the threshold limit of ₹ 1 lakh. The debt is due and payable both in law as well as in fact because the same is neither barred by limitation nor premature. Notice under Section 8 of IBC, 2016 has also been delivered to the Corporate Debtor. As regard to plea of Corporate Debtor that reply to such notice of demand had been given, there are proofs of dispatch of such reply to notice which are not at all readable and clear, hence, it does not establish the fact of delivery of such reply. Thus, claim of the Corporate Debtor is liable to be rejected that it had replied to the notice of demand under 8 of IBC, 2016. Accordingly, we hold that no reply to Demand Notice has been given by the Corporate Debtor within the statutory period of 10 days from the receipt of such notice and no reasonable cause has been shown even during the course of hearing for not doing so. Hence, in our opinion, this application is liable to be admitted for this reason alone on the principle of parity i.e. whom delivery of notice under Section 8 of IBC, 2016 is mandatory for the Operational Creditor to make an application under Section 9 maintainable, similar obligation is on the Corporate Debtor to avoid itself being admitted into CIRP to give reply to such notice of demand within 10 days. Pre-existing dispute or not - HELD THAT:- No material has brought on record by the Corporate Debtor as regard to what work was done by Operational Creditor till termination and what work remained to be completed. As per claims of Operational Creditor outstanding invoice pertain to work already done by the Operational Creditor only. Further, in the reply to notice of demand, assuming that it was given, slow rate of completion of project as alleged in letters of 15.03.2016 and 01.04.2016 has not been mentioned but issue of variation in rates applied in the invoice has only been mentioned, hence, such reply of Corporate Debtor contradicts nature of its claim as regard to pre-existing dispute. Thus, for this reason also, this claim of Corporate Debtor is rejected - The Corporate Debtor has failed to make out a triable case. However, considering the general importance of this issues as this please is taken almost in all case where aspect of pre-existing dispute is involved and even in above discussion, it has been held that Adjudicating Authority has briefed jurisdiction and proceedings before Adjudicating Authority are of summary nature. This situation has prompted us to look into legal mechanism which has been in operation for resolution of commercial disputes before IBC, 2016 was enacted. It is pertinent to mention that the tribunalisation or creation of institutions of Adjudication Authority is a modern practice which is evolved, firstly, for the purpose of expeditious disposal of the matters, of social importance and in particular of matters of the nature of the commercial disputes having economic significance for the parties in dispute as well as for the society and the National Economy as a whole and secondly to deliver justice with the help of technical experts along with legal experts. For these reasons also, there are no substance in the claims made by the Corporate Debtor. The application is otherwise complete and defect free - The application deserves to be admitted - application admitted - moratorium declared.
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