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2020 (2) TMI 1124 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - debt due and payable or not - main contention of the respondent is that there is a pre-existing dispute between the parties and the work remained incomplete by the operational creditor - HELD THAT:- It is seen that there is pre-existing dispute and also there is no certainty of the actual amount of default. Though the invoices pertain to the year 2015, there was no effective pursuance for a long period from 2015 till end of 2018. The various correspondences placed on record show that dispute was not raised for the first time to evade liability but certainly pre-existed much prior to the issuance of notice under section 8 of the Code. The e-mail dated 03.09.2015 reveals that the respondent requested for the accounts of the petitioner to confirm the balance which was never issued. There are allegations of non-conciliation of accounts despite request. Existence of an undisputed operational debt is sine qua non for initiating CIRP under section 9 of the Code. The Code is not intended to be substitute to a recovery forum. The moment there is existence of a dispute, the corporate debtor gets out of the clutches of the Code. In the factual background of this case 'existence of real dispute' cannot be totally overruled - The provisions of section 9 (5) (ii) (d) of the Code clearly mandates that Adjudicating Authority shall reject the application when notice of dispute has been received by the applicant operational creditor. In the present case notice under section 8 was duly replied within the period prescribed by bringing to the notice of the operational creditor the existence of dispute. Materials placed before us show that dispute was raised prior to the issuance of notice under section 8 of the Code. The claim of operational debt in question is not free from dispute. There is substance and plausible contention in the pleadings of both sides, which necessitates investigation - Respondent has raised dispute with enough particulars to qualify as a dispute as defined under sub-section (6) of section 5 of the Code. Application dismissed.
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