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2020 (6) TMI 645 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Having gone through the matter and on considering record, there remains hardly any doubt that the earlier correspondence shows that between the parties there were disputes regarding installation of the project as well as functioning of the same. Although the project had been commissioned for which completion certificate had been issued, still if disputes had arisen between the parties regarding the installation and functioning of the project, the operational creditor merely pointed out certificate of appreciation dated April, 2015 issued and claims that once completion certificate had been issued, corporate debtor could not raise issues with regard to the quality of the work done. In fact, the record shows that there had been even a review meeting between the operational creditor and the corporate debtor and excerpts of which minutes have been placed on record by the corporate debtor at page 187 which showed that full installation was yet to be completed (see page 188) - Only by observing that the respondent-corporate debtor have not come forward to dispute the application would not be sufficient to initiate CIRP, if the record already showed existence of dispute. Considering the voluminous records showing pre-existing disputes between the parties, there is no fault found with the affidavit filed by the authorized representative of the operational creditor as at page 495 of which paragraph 5 we have reproduced earlier. Although the Adjudicating Authority had specifically asked for the correspondence, it can be seen that the authorized representative Mr. Rahul Gupta resorting to articulate wordings avoided placing on record the correspondence claiming that "presently the communication is not retrievable". Starting of the CIRP against a functional company is a serious matter and parties cannot be allowed to play hide and seek - We propose to impose heavy costs on the operational creditor as well as Mr. Rahul Gupta. The initiation of the corporate insolvency resolution process against the corporate debtor is quashed and set aside - We release the "corporate debtor" from rigour of the "corporate insolvency resolution process". The "interim resolution professional"/resolution professional will handover the assets and records to the "corporate debtor"/"promoter"/board of directors - We impose costs of ₹ 5 lakhs on operational creditor. We impose costs of ₹ 2,50,000 on Mr. Rahul Gupta, son of Rajendra Prasad Gupta the director of the operational creditor which he shall pay from his personal account to the corporate debtor. The corporate debtor will be at liberty to execute and recover these costs or it may adjust the same from payments, if any, it has to make to the operational creditor.
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