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2021 (10) TMI 1084 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Pre-Existing Dispute or not - time limitation. Whether this Application filed under Section 9 of the Code is barred by Limitation? - HELD THAT:- The date on which the default occurred has been clearly specified in column 2(a) as December 19th, 2014. The only suggestion with respect to any acknowledgement is in para V in residuary point no. 8 in which the particulars of ‘Financial Debt’ with documents and evidence on record is required to be mentioned. In this column the disputed email dated 05.08.2015 is mentioned. Limitation is a mixed question of law and facts and no case has been made for extension of period of Limitation as the actual date of default is mentioned in the Section 9 Application as 19.12.2014. The last goods were supplied on 18.11.2014, admittedly the last payment was made on 25.11.2014 and the Application under Section 9 was filed on 09.05.2018. The record does not show any communication between 2015 and 2018. For all these reasons, the Application is barred by Limitation. Whether there is any ‘Pre-Existing Dispute’ existing between the parties prior to the issuance of the Notice mandated under Section 8 of the Code? - HELD THAT:- A perusal of the Debit Note dated 24.03.2017 read together with the Goods Received Notes and the Laboratory Test Report of the goods supplied show that there is a ‘Pre-Existing Dispute’, prior to the issuance of the Notice under Section 8. The defence raised by the ‘Corporate Debtor’ is not a sham defence and not a feeble or unsupported assertion. The record shows that there is documentary evidence filed in support of the defence. Appeal dismissed.
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