Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2023 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (2) TMI 326 - AT - Insolvency and BankruptcyInitiation of CIRP - NCLT dismissed the application on the ground that petitioner failed to prove the debt and the liability to pay the same by the corporate debtor - Whether if Section 8 Notice is not replied to, does any provision under the Code prevent the Corporate Debtor from pleading issues of Pre-Existing Dispute or that the debt has been paid, in their Reply to the Petition filed under Section 9 of the Code and whether the Adjudicating Authority was justified in dismissing the Section 9 Application filed by the Appellant herein? HELD THAT:- Neither Section 8 nor Section 9 of the Code indicate that in event Reply to Notice was not filed within 10 days, the Corporate Debtor is precluded from raising the question of dispute or pleading that there or no amount due and payable, the Corporate Debtor is not prevented from establishing by way of a Reply and relevant documents, any Pre-Existing Dispute or paid Operational Debt. There are force in the contention of the Learned Counsel for the Appellant that though a Rejoinder has not been filed, it cannot be construed that the pleadings in the Reply have been admitted to by the Appellant. The failure to file Rejoinder cannot be treated as Admission of the pleadings in the Written Statement. It is an admitted fact that there was an Agreement entered into for Season-2 dated 29.12.2016 whereby the total consideration was agreed at Rs.1.20Crs/-. A perusal of the record evidences that there are Claims and Counter Claims regarding the amount which was agreed upon. The email dated 22.11.2015 seen by the Appellant themselves shows the agreed value of the contract for the first Season as Rs.1.75Crs./-, whereas it is the contention of the Learned Counsel for the Respondent that the amount is not Rs.1.75Crs./- but is Rs.2,23,29,790/-. It is also the case of the Respondent that because of the deficient services rendered in Season-3, the cheque which was wrongly issued for Rs.34,46,000/-, was later instructed to the Bank to stop payment - Admittedly, no action has been initiated under Section 138 of the Negotiable Instrument Act, 1881. As there was no Agreement entered into for Season-3, there is no documentary evidence on record to establish that any amount was due and payable by the Respondent herein. There is no communication on record to establish that the Appellant was entitled by some provisions/promise that this particular amount was liable to be paid. The ratio of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] is applicable to the facts of this case as it is clear from the material on record that there are Claims and Counter Claims with respect to the amounts to be paid and the defense is not spurious or mere bluster - To reiterate, an Agreement has been entered into only for Season-2 and in the absence of any such Agreement for the other seasons, the Appellant/Operational Creditor has failed to discharge its burden that there was indeed an Operational Debt which was due and payable. Appeal dismissed.
|