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2022 (12) TMI 16 - AT - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Appellant is a related party in terms of Section 5(24)(j) of I&B Code - existence of pre-existing dispute or not - HELD THAT:- The judgment relied upon by the Respondent in the Zoom Communications Pvt. Ltd. [2022 (5) TMI 1480 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI] is not at all applicable because it deals with the sham transaction between the parties which was not allowed for the initiation of CIRP whereas no findings have been recorded in the present case. Pre-existing dispute - HELD THAT:- The Adjudicating Authority has further erred in not looking to the fact that in the reply to the pre-trial notice, the Respondent did not raise any issue regarding the goods being substandard which issue came to be raised only when the demand notice was issued before filing the application and was an afterthought objection, not made out from the record. The emails relied upon the Adjudicating Authority are not directed to raise a pre-existing dispute rather the said emails are exchanged by the parties regarding the improvement in the operation and sales and has nothing to do with the goods which are now alleged to be substandard or defective. Argument of the Respondent that the Appellant has invoked the arbitration in the pre-trial notice is also neither here nor there in view of the fact that firstly, Section 21 of the Act would apply only to the Arbitral proceedings in India as has been held by the Delhi High Court in the case of Raffles Design International India Pvt. Ltd. [2016 (10) TMI 1353 - DELHI HIGH COURT] and secondly, it was the arbitration court in the St. Petersburg which is akin to Civil/Commercial Court having three tiers. Thus, there is an error of appreciation of facts and evidence on the part of the Adjudicating Authority in dismissing the application filed by the Appellant - appeal allowed.
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