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2022 (4) TMI 13 - AT - Insolvency and BankruptcyInitiation of CIRP - Going Concern - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- In the Application filed under Section 9, there is specific mention of notice dated 06.04.2019 issued by the Operational Creditor. Notice dated 06.04.2019 specifically mentioned in the List of Dates and Events as well as in Part-IV of the Application and copy of notice dated 06.04.2019 was filed as Annexure A-4 along with the Application. In the reply, which was filed by Corporate Debtor dated 18.09.2019, there was no plea that notice dated 06.04.2019 was not served on the Corporate Debtor. Both in the preliminary objection and reply on merits, there is no specific denial of non-receipt of notice dated 06.04.2019, which clearly supports the submission of learned Counsel of the Operational Creditor that notice was duly issued on correct address and was served on the Respondent – Corporate Debtor. The learned Counsel for the Appellant relied on judgment of this Tribunal in ANIL SYAL VERSUS SANJEEV KAPOOR [2020 (1) TMI 472 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] as well as JAYA PATEL VERSUS GAS JEANS PVT. LTD. & ORS. [2018 (10) TMI 1909 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and contends that service of notice under Section 8 is sine qua non for proceedings under Section 9 of the Code. There can be no doubt about the above proposition laid down by this Tribunal in the above cases - However, present is a case where, notice was duly served by the Operational Creditor on the correct address of the Appellant-Corporate Debtor. Operational Debt due or not - HELD THAT:- The mere fact that when the Corporate Debtor did not pay the amount, suit for recovery was filed in the year 2016 by the Operational Creditor, which was also Decreed on 08.09.2016, does not in any manner effect the transaction out of which the amount fell due. The fact that amount was adjudicated and a Decree was passed, in no manner take away the nature of ‘operational debt’ - the Application filed by Respondent under Section 9 was fully maintainable and the claim of the Respondent was a claim of ‘operational debt’ and there are no merit in the submission of the learned Counsel for the Appellant that there was no ‘operational debt’. The provisions of the Code namely under Section 238 shall have an overriding effect. Hence the Application under Section 9 filed by the Operational Creditor cannot be defeated on the ground that any Application for execution was pending, more so, when inspite of Decree passed on 08.09.2016, no payment was made by the Corporate Debtor. Even when a going concern is unable to discharge its debt, the Operational Creditor is entitled to invoke Section 9, hence, the Application filed by Operational Creditor under Section 9 cannot be said to be non-maintainable on the ground that Corporate Debtor is a going concern - there are no substance in any of the submission of the learned Counsel for the Appellant - appeal dismissed.
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