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2022 (6) TMI 1293 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and default or not - HELD THAT:- After the settlement was arrived, the Respondent/Corporate Debtor however failed to pay the amount. Despite the settlement arrived at between the parties, the Respondent/Corporate Debtor filed an application under Section 34 of Arbitration & Conciliation Act, 1996 before the Hon'ble High Court of Madras on 05.07.2021. The petition is not numbered till date but it is in the SR stage for almost one year. Since the settlement was not honoured by the Respondent/Corporate Debtor, the Petitioner/Operational Creditor was once again forced to file this petition on 15.12.2021. Prima facie, the debt and default has been established by the Petitioner/Operational Creditor by referring to the various marine goods supply bills which were duly acknowledged by the Respondent/Corporate Debtor and also by the award wherein the Respondent/Corporate Debtor clearly admitted the receipt of goods for export. It is another matter that the Respondent/Corporate Debtor was unable to make the payment as undertaken. The question is that in subsequent event viz., filing of the counter claim, both parties entered into an arbitration award and that award crystallized the amount due and payable under the supply of goods and Memorandum of Compromise settlement has been arrived by the Respondent/Corporate Debtor in favour of the Operational Creditor herein. It is the nature of goods sold and delivered for which the amount due and payable has not been paid by the Respondent/Corporate Debtor, despite several proceedings taken by the Petitioner/Operational Creditor in different forums. Therefore, it is a clear case of inability to pay the debt by the Respondent/Corporate Debtor. The Petition, as filed by the Operational Creditor in a clear case of debt and default coupled with inability to pay justifies initiation of proceedings. Hence, the petition is required to be admitted under Section 9(5) of the IBC, 2016. Petition admitted - moratorium declared.
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