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2021 (11) TMI 613 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of pre-existing dispute when Notice under Section 8 was issued - HELD THAT:- Sub-section (2) of Section 8 obliges the Corporate Debtor who has been delivered a Demand Notice under Section 8(1) by Operational Creditor to bring into notice of the Operational Creditor “existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute” - reply as required under Section 8(2), it is incumbent on Corporate Debtor to bring into the notice to the Operational Creditor ‘existence of a dispute’. Although notice under Section 8(1) was replied by the Corporate Debtor vide email dated 04.02.2019 as extracted above, but there is no mention of existence of a dispute. Rather the reply dated 04.02.2019 reiterate that the Respondents are ready to make the payment as per their revised plan communicated on 30.01.2019. There is a statutory purpose for requiring a Corporate Debtor to bring into notice of the Operational Creditor about the existence of a dispute in its reply to Section 8(1) notice. The purpose is that if there is a dispute in existence, the same may be immediately communicated to the Operational Creditor so that he may chart his course of action. When no mention of existence of dispute is made by the Corporate Debtor, the Operational Creditor can immediately file Application under Section 9 which has been done in the present case by Operational Creditor. In the present case, no notice of dispute has been received by the Operational Creditor as noted above. There is another expression in clause (d) noted above that ‘there is a record of dispute in the information utility’, the present is also not a case where there is record of any dispute in the information utility nor any such pleading or material has been placed before us. The very basis on which the Adjudicating Authority rejected the Application is not in existence. There being no pre-existing dispute between the parties, the Adjudicating Authority ought to have admitted the Application and proceeded with the Corporate Insolvency Resolution Process - The receipt or acknowledgment of the said debit notes has also been denied. It is not necessary for us to pronounce as to whether the debit notes are forged or manufactured for the purposes of this case, since the very basis of the decision of Adjudicating Authority was the existence of dispute. Application of the Operational Creditor filed under Section 9 stands admitted and the Adjudicating Authority is directed to proceed with. The Corporate Insolvency Resolution Process shall be deemed to have commenced from this date.
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