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2020 (8) TMI 492 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHIMaintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- This Tribunal is of the considered opinion that the Corporate Debtor had accepted that all the works have attended by the Operational Creditor and further requested the Operational Creditor to attend to the work as a Special case request. From the reading of the e-mail, the request made by the Corporate Debtor is not part of the original work and it is a Special Request made to the Operational Creditor to do the work. There are no record or document to establish that there exists any dispute nor raised any dispute by the Corporate Debtor, hence, we conclude that there is no pre-existing of dispute. The Operational Creditor had awarded the work and the retention money cannot be treated as separate money. The retention money is a part of main bill which was retained by the Corporate Debtor as per the terms of the Work Order and the same shall be released after completion of the work and issuance of the Completion Certificate. The Respondent No. 1 being a Corporate Debtor is due and payable retention money which is part of the main Bill thereby the Operational Creditor is well within the definition of Section 5(20) IBC - In the present case, the Demand Notice dated 01.03.2018 was received by the Corporate Debtor on 09.03.2018. However, they fail to bring to the notice of the Operational Creditor with regard to existence of dispute in their reply or even shown existence of dispute prior to the issuance of Demand Notice. The Respondent No. 1 had not raised any dispute which is existing prior to the issuance of Demand Notice. Further Section 3(2) of IBC define default. As per said Section, the default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the Debtor or Corporate Debtor as the case may be. The debt has been defined in Section 3(11) means a liability or obligation in respect of a claim which is due from any person and includes a Financial Debt and Operational Debt - In view of the definition of debt and default, the retention money, which is part of the main bill, comes under the definition of debt and default. The Respondent No. 2 falls under the category of Operational Creditor and the ‘debt’ is an Operational Debt as per law, which is due and payable - there is no pre-existence of dispute and Application is not barred by limitation - Appeal dismissed.
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