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2022 (1) TMI 1179 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - services provided by the Operational Creditor to Corporate Debtor - existence of debt and dispute or not - Service of demand notice - HELD THAT:- As per Section 8(2) of the IBC, 2016, the Corporate Debtor had to bring the existence of any dispute if any or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice of the Operational Creditor within 10 days of receipt of such notice i.e. 25.11.2019. But the Corporate Debtor sent the reply to the demand notice to the Operational Creditor on 28.12.2019, which is beyond the stipulated time period. Therefore, the said letter would not be considered as notice sent by the Corporate Debtor to the Operational Creditor showing the existence of any dispute or record of the pendency of the suit of arbitration proceedings filed before the receipt of such notice as per the IBC, 2016. Pre-existing dispute - HELD THAT:- Corporate Debtor has failed to satisfy that there is a pre-existing dispute. The mails which the corporate debtor is annexing is with respect to the rejection of the reports, which operational Creditor has resubmitted but Corporate debtor has concealed the fact of resubmission. As per the clauses mentioned in the Purchase order, for every failed report, Corporate debtor is entitled for resubmission and if there is delay in resubmission, there are provisions of Penalty which according to us does not negates the existence of default and Operational Creditor has sufficiently placed all the records, accounts, bank statements, invoices raised and summary of outstanding dues and establishes the existence of default as per the provisions of Section 9 of the IBC, 2016. The Application is complete in respect of Sec. 9(5)(i) of the provisions of Insolvency and Bankruptcy Code, 2016 and liable to be ADMITTED. Application admitted - moratorium declared.
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