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2022 (4) TMI 526 - NATIONAL COMPANY LAW TRIBUNAL , AMARAVATI BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and pre-existing dispute or not - HELD THAT:- The contention of the operational Creditor is that all the decisions taken by the Corporate Debtor are to be approved by the Management at Abu Dhabi and hence, when the Management at Abu Dhabi does not instruct anything with regard to the dues of the Operational Creditor, the same cannot be withheld. The dispute as can be seen from the reply notice is with Mr. M.V. Bhushanam, who was allegedly responsible for the financial loss of the Corporate Debtor. It also can be noted from the reply notice that the Corporate Debtor is not doing well and is in the state of losses and that endeavours to bring out the company from the loss making to profit making are being done. The invoices pertaining to the supplies are filed and the same are not denied. There is acknowledgment of the debt by way of acknowledging the letter with the subject "confirmation of accounts" which is dated 11.12.2017. The pre-existing dispute which is taken as a defence by the Corporate Debtor should relate to the claim made by the Operational Creditor. The dispute, which is for the first time stated in the reply notice, is only with regard to Mr. M.V. Bhushanam. Even after Mr. M.V. Bhushanam was removed as an Authorised Signatory the liability of the Corporate Debtor is acknowledged. Payments were being made till 16.04.2016. No action was taken with regard to the alleged mismanagement of Mr. M.V. Bhushanam prior to 16.04.2016 and the due amount was also confirmed on 11.12.2017. There is no protest made while acknowledging the said accounts. When no action is initiated in respect of the said mismanagement, projecting the mismanagement as the preexisting dispute, only when a demand is raised by the Operational Creditor, cannot be considered as a pre-existing dispute. When the amount due is not disputed and when it is not disputed that the goods under the invoices were delivered to the Corporate Debtor, the contention that they are lying idle on their site cannot be given weight. Two years have elapsed from the supply of the material till the filing of this application, during which period there was no action taken by the Corporate Debtor with regard to the said material. Hence, all the defences raised by the Corporate Debtor get marginalized from the fact that the supply of material is not denied and that the statement of account was confirmed on 11.12.2017. Mere mentioning in the reply notice, that there is a pre-existing dispute does not deprive the Tribunal of its power to order CIRP. If the dispute is found to be not genuine and not related to the claim, the same can be ignored. Hence, it is clear that the Corporate Debtor has fallen due the amount that is claimed by the Operational Creditor. This is a fit case to admit and order initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor - petition admitted - moratorium declared.
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