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2022 (5) TMI 922 - AT - Insolvency and BankruptcyInitiation of CIRP - NCLT admitted the application - Operational Creditors - pre-existing disputes with respect to the price of the equipment supplied or not - HELD THAT:- The issue whether the ‘dispute’ raised is an assertion of fact has to be decided on the touchstone of the ratio laid down by the Hon’ble Apex Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] where it was held that Going by the test of “existence of a dispute”, it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague, got-up and motivated to evade liability. It is significant to mention that the Corporate Debtor does not deny the issuance of three cheques totalling to Rs.35,54,755/-. It is their only case that there was a pre-existing dispute between the parties. It is pertinent to note that the Corporate Debtor has not raised any pre-existing dispute in reply to the Demand Notice under Section 8 of the Code. Be that as it may, the contention of the Learned Counsel that the MOU expired on 30.09.2016 and, therefore, the amounts raised for the invoices for the subsequent period is not payable, is unsustainable as the documentary evidence establishes that the claims made by the Operational Creditor were against the invoices for the period 10.03.2017 to 15.09.2018 and have no nexus with the MOU - It is seen from the record that there is no ‘disputed questions of fact’ and that the argument raised regarding the existence of a dispute is a patently feeble legal argument unsupported by evidence. The defence is spurious and a plainly frivolous one. There is no material on record to establish that there was any dispute prior to the issuance of the Section 8 Demand Notice or that there was any assertion of fact supported by any evidence to establish the existence of dispute - Appeal dismissed.
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