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2018 (4) TMI 350 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - non-payment of mobilization advance - Held that:- Non-payment of advance cannot give rise to a claim under Section 5(21) of IBC,2016 as an Operational Debt will arise only when the Petitioner/Operational Creditor is able to establish that there is a debt due and payable arising out of provision of goods or by rendering of services which is not the case here as the said stage has not according to the Corporate Debtor arisen at all. At best, non-payment of mobilization advance even if there has been full mobilization on the part of the Operational Creditor can give rise to breach of the contract and the amount payable under the said contract as well as the damages can be quantified in a Civil Court and not by this Tribunal. This is particularly so in relation to the work contract. As rightly stated by Ld. Counsel for the Corporate Debtor that there is a plausible dispute between the parties which can be agitated as well, by the parties before the Civil Court and not before this Tribunal as the provisions of IBC,2016 contemplate the insolvency of the Corporate Debtor and the consequences arising thereunder are for the benefit of the entire body of creditors and that no creditor is going to be benefitted and on the other hand the claim of advance and non-payment of the same cannot be considered as an ‘Operational Debt’, this Tribunal is not satisfied with the claim as put forth by the Operational Creditor as beyond the pale of plausible dispute.
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