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2022 (2) TMI 799 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors or not - whether the Dispute raises a ‘plausible contention’ which requires ‘more examination in the form of an investigation’ and it not a ‘Dispute which is a patently weak legal argument or an assertion of fact? - HELD THAT:- Section 5(21) defines ‘operational debt’ meaning ‘a claim in respect of the provisions of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority’ - Before the ‘Adjudicating Authority’, the Appellant/Operational Creditor alongwith the application had only mentioned the details of 1110 Nos of invoices but had not enclosed the copies of the said invoices and as such the application was treated as an incomplete one by the ‘Adjudicating Authority’. Even the copy of the ledger account was not placed on record before the ‘Adjudicating Authority’. One cannot remain oblivion to the prime fact that in the case on hand, the Appellant/Operational Creditor and Respondent/Corporate Debtor were supplying materials mutually and under such circumstances the Appellant/Applicant singly to be considered as an ‘Operational Creditor’ qua the ‘Corporate Debtor’ - it cannot be brushed aside that the Appellant had received the services/goods from the Respondent/Corporate Debtor and in that context, the claim arose between the parties. A ‘Debt’ may not be due if it is not payable in law or in fact. The application must be complete with a view to enable an ‘Adjudicating Authority’ to admit the same. While scrutinising an application under Section 9 of the Code, an Adjudicating Authority is to determine (a) whether there is an ‘operational debt’ as per Section 4 of the Code (b) whether the material/documentary evidence submitted with the application indicates that the aforesaid ‘debt’ is due and payable and the same was not paid. (c) whether there is existence to a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed prior to the receipt of the Demand Notice of the unpaid ‘operational debt’ pertaining to a dispute - If anyone of the above said conditions is lagging behind, then the application is to be rejected in the eye of law. It is to be remembered that an adjudicating authority is to follow the particular mandate of Section 9 (5) of the Code, and admit or reject the application based on the ingredients enumerated in Section 5 of the Code. This Tribunal considering the facts and circumstances of the present case and also on going through the impugned order passed by the Adjudicating Authority comes to a consequent conclusion that the application project by the Applicant/Operational Creditor before the Adjudicating Authority is devoid of necessary qualitative and quantitative details, coupled with the candid facts that the Appellant is not an ‘operational creditor’ pertaining to the Respondent/Corporate Debtor and viewed in that perspective, the conclusion arrived at by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench II, Chennai) in dismissing the application is free from legal infirmities - Appeal dismissed.
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