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2020 (6) TMI 332 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - bone of contention raised by the Corporate Debtor is that the Operational Creditor is not entitled to receive any payment as the Operational Creditor has failed to install the equipment in the premises of the Corporate Debtor and also failed to provide adequate training to the staff of the Corporate Debtor in order to operate the said equipment. HELD THAT:- A careful reading of the terms and conditions of the Purchase order manifests that "the installation and training of the system will be done by the Factory trained engineers" and it does not state that the payments will be made only after Installation & Training of the equipments as alleged by the Corporate Debtor. Further, it may be seen that the delay in installation of the equipments in the premises of the Corporate Debtor is attributable to the Corporate Debtor as the Director of the Corporate Debtor is the one who wants the equipment to be installed in a new place and as such he has delayed in installation of the said equipment and now he cannot plead to the contrary by stating that the Operational Creditor has not installed the equipments and hence they are not entitled for any payments. Even though the Corporate Debtor has alleged that the Operational Creditor has delayed in installing the equipments at the premises of the Corporate Debtor, the Corporate Debtor has not placed on record any documents to show, nor any exchange of e-mails between the parties, in relation to the delay in installation of the equipment on the part of the Operational Creditor and as such the Corporate Debtor, with an intent only to evade the payments to be made to the Operational Creditor has raised such a contention, and furthermore the said plea was raised by the Corporate Debtor only after the issuance of the Demand Notice and as such the same cannot be termed as a "pre-existing dispute" - after conscientious examination of the records and taking into consideration the facts and circumstances of the case as well as the position of Law, it is considered appropriate that the Petition as filed by the Operational Creditor is required to be admitted under Section 9(5) of the IBC, 2016. Application admitted - moratorium declared.
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