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2021 (10) TMI 1077 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Pre-existing dispute between the parties or not - HELD THAT:- The burden of proof lies on the Corporate Debtor to establish the pre-existence of dispute before this tribunal. As rightly pointed out by the counsel appearing for the Operational Creditor, in the minutes of the meeting dated 16.08.2016 which was annexed at page No. 117 it was clearly mentioned that the Corporate Debtor has assured to clear the outstanding amount of ₹ 46.5 Lacs as full and final settlement in three equal instalments that too by end of September 2016 - The subsequent email also clearly proves that the Corporate Debtor has assured clearance of the pending dues of the Operational Creditor which was withheld by the Corporate Debtor due to some technical quarries raised by their Higher Officers. This bench has no hesitation in holding that the Corporate Debtor has miserably failed to prove and demonstrate the existence of any pre-existing disputes between the parties and no presumption of pre-existence of disputes can be inferred from the reply filed by the Corporate Debtor in the present company petition. Unless this tribunal after applying its mind comes to the conclusion that the plea of pre-existence of disputes raised by the Corporate Debtor is not a palpable defence and requires some investigation, the plea of pre-existence cannot be accepted. The contention of the respondent that the emails relied upon by the Operational Creditor strengthens the existence of disputes is not legally sustainable as no such presumption of disputes can be inferred from the emails. This bench is of the considered opinion that there is an Operational Debt due and payable, by Corporate Debtor and the Corporate Debtor has committed default in paying the same. When once these two legal requirements are established, this bench has no option except to admit the above petition filed U/sec. 9 of the Insolvency and Bankruptcy Code, 2016. Petition admitted - moratorium declared.
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