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2022 (6) TMI 1181 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - invoices forged by the Applicant to extort money - invoices not authenticate - HELD THAT:- The Applicant has alleged a default on part of the Respondent in payment of a sum of Rs. Rs. 9,46,177/-. The Respondent has, in reply to the Demand Notice dated 16.05.2019 in Form 3 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, issued by the Petitioner/Applicant, raised dispute in relation to amount due and the invoices raised. The Respondent has even disputed the invoices raised by the Petitioner/Applicant by stating that certain invoices raised by the Petitioner/Applicant are deliberately and malafidely forged. In terms of this judgment of the Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [2017 (9) TMI 1270 - SUPREME COURT], it is clear that to qualify as pre-existing dispute, the dispute has to be raised before the issuance of notice u/s. 8, IBC Code, 2016. The Corporate Debtor must bring to the notice of the Operational Creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute. The Respondent, in reply to the notice u/s. 8, had stated that the amount due as per his ledger was Rs. 210/- which was supported by his books of accounts. The Respondent has failed to produce any prior communication before the issuance of notice u/s. 8 of IBC Code, 2016 so as to establish that the dispute was pre-existing. Thus, this Tribunal is of the view that no pre-existing dispute exists between the parties. The Respondent has alleged that invoices have been forged by the Applicant to extort money from the Respondent. Both the Respondent and the Applicant have attached their ledgers which do not match and the Respondent has claimed that invoices have been forged by the Applicant - As per the ledger maintained by the Respondent, a mere amount of Rs. 210 is due to the Applicant. The amount of debt due, if any, cannot be ascertained as long as the authenticity of invoices is proved. The dispute with respect to forgery of invoices cannot be decided by this Adjudicating Authority. This Adjudicating Authority is not expected to ascertain the veracity of invoices raised. Therefore, the Applicant may explore other legal remedies. In the present case, the authenticity of the invoices is itself in doubt, the debt cannot be established at this stage and therefore, proceedings under Section 9 of the IBC Code, 2016 cannot be initiated against the Respondent - application dismissed.
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