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2019 (2) TMI 967 - Tri - Insolvency and BankruptcyInitiating corporate insolvency resolution process - existence of dispute - claim of the corporate debtor for non-delivery of goods entrusted to the operational creditor - Held that:- A claim of the corporate debtor for non-delivery of goods entrusted to the operational creditor was not resolved till the date of issuance of the demand notice to the corporate debtor. The operational creditor has denied its liability towards the claim raised by the corporate debtor. According to the operational creditor it has no obligation for the loss of goods or misplaced of the goods by the ship- per/corporate debtor and the operational creditor has no liability for mis- placed and lost material as claimed by the corporate debtor and the said purchase orders were never renewed by the operational creditor. In a case of this nature not bound to determine the merits of the dispute. The above said factors leads to a conclusion that corporate debtors claim for sett off on account of loss/non-delivery of goods entrusted is still not resolved. It has come out in evidence that operational creditor issued notice for reference of the dispute to the arbitration. The liability if any on account of admitted non-delivery of goods is denied by the operational creditor. The above said circumstances are sufficient to hold that there is a pre-exist- ing dispute in respect of the amount liable to be paid by the corporate debtor to the operational creditor. What is meant by existence of dispute to be established on the side of the corporate debtor in a case of this nature is dealt with in Mobilox Inno- vations P. Ltd. v. Kirusa Software P. Ltd. [2017 (9) TMI 1270 - SUPREME COURT OF INDIA]. The corporate debtor issued reply notice to the demand notice issued under section 8(2) of the Code so as to bring to the notice of the opera- tional creditor the existence of a dispute, which is evidently found pre- existing before the issuance of the notice received by the corporate debtor. Thus the application is liable to be rejected under section 9(5)(ii)(d) of the Code. Accordingly rejected.
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