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2023 (1) TMI 745 - AT - Insolvency and BankruptcyInitiation of CIRP - Operational Debt or not - amount claimed by SDMC in connection with Toll Tax and ECC Agreement - existence of pre-existing dispute between SDMC and the contractor MEP Infrastructure or not - Classification of debt that is claimed to be in default and payable to SDMC - HELD THAT:- An operational debt is a claim in respect of provisions of goods or services and the claim must bear some connection with the provision of goods or services, without specifying who is the supplier or receiver. Thus, the supplier in the present case of services is MEP Infrastructure and the receiver is SDMC, but in accordance with the clearly held position in the case of Consolidated Construction Consortium Ltd. [2022 (2) TMI 254 - SUPREME COURT], the debt owed by MEP Infrastructure to SDMC falls in the definition of operational debt under the IBC and hence the debt owed by MEP Infrastructure to SDMC is an operational debt as defined in section 5(21) of the IBC. Whether the dispute is a pre-existing dispute or not? - HELD THAT:- The termination of the Toll Tax Agreement is also provided in clause 17 in case of default and it is provided in the agreement that even after termination of the agreement, the rights and obligations of any of the parties that arise before termination are protected - it is clear that from the total amount claimed by MEP Infrastructure, a major amount was disallowed by the Commissioner, SDMC, and as a result MEP Infrastructure filed writ petition being WP 2241/2020 before the Hon’ble High Court of Delhi seeking the quashing of order dated 30.1.2020 of Commissioner, SDMC on addition to certain other reliefs. Thus ot becomes amply clear that there were disputes raised by the contractor MEP Infrastructure which were actively considered by the High Level Committee and Commissioner, SDMC and many disputes remained unresolved as the further litigation pursued by the contractor shows. The claims put forward by MEP Infrastructure, their consideration by High Level Committee of SDMC, then by Commissioner, SDMC upon order of Hon’ble Delhi High Court were in the nature of disputes between SDMC and the contractor and these disputes were subsequently carried to the Hon’ble Delhi High Court for resolution. Though the debt claimed by SDMC is an ‘operational debt’, there are clearly ‘pre-existing disputes’ raised by MEP Infrastructure regarding which litigations/dispute resolution mechanism have been pursued by both the parties in Hon’ble High Court and the internal forum of SDMC and the existence of these disputes has been brought to the notice of the operational creditor SDMC by MEP Infrastructure through its reply to demand notice under section 8. In such a situation, the section 9 application, which is clearly impacted by such ‘pre-existing dispute’, has correctly been disallowed by the Adjudicating Authority. Finding no error in the Impugned Order we refuse to interfere with it. Appeal rejected.
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