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2022 (5) TMI 435 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational Creditors - whether there were any Pre-Existing Disputes between the Corporate Debtor and the Appellant herein/Operational Creditor and whether the Adjudicating Authority was justified in dismissing the Section 9 Application? - HELD THAT:- It is clear that the Corporate Debtor was undergoing financial crunch on account of which the end user M/s. IOCL has undertaken to make the payment to the tune of Rs.42,41,947.64/- against completion of erection of the racking system and the balance would be released after the completion of the job in totality, with due certification by the Corporate Debtor. It is the case of the Corporate Debtor that this communication signifies that it is the end user IOCL which has undertaken to pay the amounts for and on behalf of the Corporate Debtor and hence no liability can be fastened upon them. The material on record evidences that on 03/05/2018, a Comfort Letter was requested to be issued by the Appellant to IOCL against the Purchase Order for the supply of instalment of Multitier Racks for Heavy Duty Shelving. The correspondence dated 16/08/2018 between the Appellant and IOCL further strengthens the argument of the Respondent that the payment would be realized by IOCL after complete erection of system and the balance after completion of entire racking system - It is the case of the Respondent/Corporate Debtor that even for the Review Meeting the Corporate Debtor was not present and it was held between IOCL and EIL and the Appellant herein. The Minutes too do not record the presence of the ‘Corporate Debtor’. From the aforenoted communication, this Tribunal is of the considered view that the payments were to be made, as per the Comfort Letter, by IOCL to the Appellant herein. Whether there is any Pre-Existing Dispute existing between the parties prior to the issuance of the Notice mandated under Section 8 of the Code? - HELD THAT:- The definition of the word dispute, is in fact, illustrative, the Corporate Debtor is not left with the only option of showing the existence of dispute by way of a pending Suit or Arbitration but can exercise its right to show that goods and/or services supplied were substandard and deficient in quality - The dispute between the parties is on account of the shortcomings observed in the quality of the racking materials supplied to IOCL. The letter dated 30/11/2018 addressed to the Appellant specifies that there are discrepancies and the test certificates of all plates/materials is absent. This Tribunal is of the considered view that there is a Pre-Existing Dispute and the aforenoted correspondence establishes that a dispute truly exists in fact between the Parties, which is not a patently feeble legal argument or an assertion of facts, unsupported by evidence. There is no illegality of infirmity in the Order of the Adjudicating Authority - Appeal dismissed.
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