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2022 (3) TMI 198 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt - admission of debt or existence of dispute - existence of debt and dispute or not - whether the Appellant has filed sufficient documents to establish whether the amounts claimed in Part IV of Form 5 of the Application, are ‘due and payable’? - HELD THAT:- There are force in the contention of the Learned Counsel for the Respondent Company that the Forensic Report filed by the Appellant herein has been obtained by them without taking the permission of the Adjudicating Authority. It is the case of the Appellant that the Respondent Company has taken different stands i.e., in their Reply to the Demand Notice dated 14/11/2019, the Respondent has submitted that the amount claimed is a ‘Security Deposit’ and pertains to the Leave and License Agreement. But in their Rejoinder to the Reply dated 08/01/2020, they have denied the same. The Respondent also denies that there was any supply of goods and services between the Appellant and the Respondent. The amounts pertaining to 37 invoices have been paid by the Respondent. The same amounts reflect in Part IV of Form 5 of the Application claiming ₹ 4,16,48,466/-and ₹ 7,76,706/-. The delayed payment charges sought to be paid by the Appellant are not supported by any Agreement executed between the parties, based on which the Appellant could have exercised their rights to claim these amounts towards delayed charges. The interest charged towards penalty does not find a mention in any of the 37 invoices which are on record. The Journal Entries not supported by any other additional evidence cannot be ‘solely’ relied upon to prove that the amount claimed arises out of ‘supply of goods and services’ to fall within the ambit of the definition of ‘Operational Debt’ as defined under Section 5(21) of the Code. Further we are inclined to observe that the dishonour of the two cheques is a subject matter of the NI Act, 1881 and recovery of those amounts under the NI Act, 1881 cannot be said to be paid towards the supply of goods and services, specifically in the light of the absence of any such Agreement or invoices to that effect. The Appellant has already initiated steps under Section 138/141 of the NI Act, 1881 and submits that the ratio of ‘Sudhi Sachdev’ [2018 (11) TMI 1671 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] is applicable to the facts of this case, as it relates to ‘Admission of debt’ and ‘not an existence of dispute’. The issue in this case is not whether there is an ‘Admission of debt’ or ‘existence of dispute’ but whether in the absence of any sufficient evidence on record that the amounts claimed are ‘in respect of the provision of goods and services including employment or a debt in respect of (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’ as defined under Section 5(21) of the Code - there is no sufficient evidence on record to prove that any kind of ‘Operational Debt’ is ‘due and payable’. Therefore, there are no substantial grounds to interfere with the well-considered Order of the Adjudicating Authority. Appeal dismissed.
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