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2022 (11) TMI 163 - AT - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - whether payment to the Operational Creditor/Respondent No.1 was due from the Corporate Debtor giving rise to an operational debt? - whether a default has been committed by the Corporate Debtor/Appellant in respect of payment of such operational debt having already become due and payable? - whether the said operational debt exceeds an amount of Rs. 1 lakh and is an undisputed debt? HELD THAT:- Having failed to make the requisite payments, it is noticed that the Operational Creditor sent a notice under Section 8 of IBC to the Corporate Debtor. It has been contested by the Corporate Debtor that the notices were not received as they were not delivered as per prescribed procedure. On this aspect, it is found that the Adjudicating Authority has dwelled upon the issue of service of Demand Notice in details. Having perused the speed post tracking report, the Adjudicating Authority found that the notice which was sent to the Corporate Office of the Corporate Debtor at Gurgaon was duly delivered - After taking note of rules relating to service of Demand Notice, the Adjudicating Authority has rightly found no force in the contention raised by the Corporate Debtor that the Demand Notice was not delivered. Whether there was any pre-existing dispute raised during the stage of notice or whether there was any dispute on the date of filing the application under Section 9 of the IBC? - HELD THAT:- From material on record it is clear that notice under section 8(1) was sent to the Corporate Debtor by the Operational Creditor - It is also an admitted fact that the Corporate Debtor did not reply to the Section 8(1) notice and it follows therefore that the ‘existence of dispute’ was not raised by the Corporate Debtor at the stage which it was obligated to do under section 8(2) of IBC on receipt of notice under Section 8(1) of the IBC - When no mention of existence of dispute was made by the Corporate Debtor, the statutory scheme of IBC entitled the Operational Creditor to file an application under Section 9 and this is exactly the course of action followed by the Operational Creditor. From the papers on record and submissions made, no reasons are found to disagree with the Adjudicating Authority that the Corporate Debtor has failed to show any correspondence to establish that the Corporate Debtor had ever raised any dispute regarding defective goods prior to the issuance of Demand Notice. Even when the goods were supplied to Air India on the instructions of the Corporate Debtor, Air India before accepting delivery at their site inspected the complete consignment of HRC and noted that they were accepted in apparent good order and condition as clearly indicated in Airways Bill, illustrative examples of which are at pages 172-173 and onwards in the Appeal Paper Book. No evidence to the contrary has been submitted by the Appellant. The Adjudicating Authority in the present case has carefully considered the reply and submissions made by the Corporate Debtor and has correctly come to the conclusion that there is no ground to establish any real and substantial pre-existing dispute which can thwart the admission of section 9 application against the Corporate Debtor - all the requisite conditions necessary to trigger the Corporate Insolvency Resolution Process under Section 9 of the IBC stand fulfilled in the present case. No error has been committed by the Adjudicating Authority in admitting the application under Section 9 of the IBC and initiating CIRP - Appeal dismissed.
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