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2022 (9) TMI 221 - Insolvency & Bankruptcy
Initiation of CIRP - NCLT admitted the application - pre-existence of debt and dispute or not - Service of demand notice - Whether there was a debt due of which default was committed by the Corporate Debtor entitling the Operational Creditor to file an Application under Section 9 of the IBC? - HELD THAT:- The contact was entered directly between OC & CD and it was responsibility of CD to make payment to OC. At this stage, CD cannot take shelter of MoU entered into between CD & Akshaya, which in any case, was an independent MoU or agreement. Admittedly, OC was not a direct party to said MoU. Merely fact that CD in turn had supplied 66,000 STBs to Akshaya as an agent, does not absolve him of his liability to make the payments as per contract in form of purchase order. The receipt of quantity i.e 66,000 STBs, quality or agreed upon rates were never any point of dispute between OC and CD.
The debt existed which were due to be paid and default took place. We also observe that proper demand notice in Form 3 was issued fulfilling the requirement as stipulated in IBC - there are no error in the Impugned Order on this issue.
Whether there was a pre-existing dispute between the parties prior to issuance of Demand Notice under Section 8 of the IBC dated 23.08.2021? - HELD THAT:- There are two distinct contracts entered by CD i.e. one with OC, whereby, CD was to receive 66,000 STBs from OC and Second Contract with Akshaya to whom such STBs were to be supplied admittedly at 3% commission. Since, both are separate commercial transactions, the rights and liabilities are distinct of both contract and cannot be intermingled. We observed that at one hand CD has initiated Section 9 Application against Akshaya and later based on compromise memo was filed before the AA and claimed outstanding dues from Akshaya. Admittedly he has received certain consideration for supply of STBs to Akshaya but has raised.
There was clear contract between ‘CD’ and ‘OC’ as well as ‘CD’ and ‘Akshaya’ and it is squarely responsibility of CD towards its obligation to OC. Correspondence between ‘CD’ and ‘OC’ as produced by both ‘CD’ and ‘OC’ do not establish any pre-existing dispute. Hence, AA rightly taken decision in this regard and there are no error in the ‘impugned order’ for this issue.
This Tribunal is of the considered view that no ground is made out for any interference by this Tribunal with the impugned order - Petition dismissed.