Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (1) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 655 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues to Operational Creditor - existence of dent and dispute or not between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute - HELD THAT:- The petitioner/ Operational Creditor though claimed to have entered into Purchase Order dated 25.02.2016 (ANNEXURE 'A') with the respondent/ Corporate Debtor, the petitioner/ Operational Creditor could not produce any documentary evidence to the effect that it had provided AMC services as agreed upon, or any evidence to show that the Corporate Debtor has acknowledged debt or any acknowledgement that the Corporate Debtor has received invoices issued by the Operational Creditor or that the Corporate Debtor has confirmed any debt, in part or full - It is further observed that the petitioner/ Operational Creditor had claimed to have issued Demand Notice dated 11.09.2017 (ANNEXURE 'E'). However, there is no proof of service/ acknowledgement of the said Demand Notice. so is the case with Demand Notice dated 17.08.2019 (ANNEXURE 'F'). Besides, affidavit under section 9(3)(b) of the I&B Code, 2016, is not filed by the petitioner/ Operational Creditor. We are not able to trace any shred of acknowledgement/ confirmation from the Corporate Debtor that the Operational Creditor had provided AMC services either in part or full or that the Corporate Debtor had acknowledged/ confirmed that the Corporate Debtor owed any dues to the Operational Creditor towards such services or that the Corporate Debtor had paid any part of amount towards any services provided by the Operational Creditor. Nowhere we find any acknowledgement of the Corporate Debtor, except Purchase Order dated 25.02.2016 (ANNEXURE 'A', page 17). Mere signing of Purchase Order, ipso facto, does not lead to its execution - In absence of such acknowledgement/ confirmation by the Corporate Debtor, operational debt is not proved. Further there is no documentary evidence to show that debt has become due and payable by the Corporate Debtor. It can be concluded that (i) no ingredients of any debt having become 'due and payable' are available in the present case, (ii) there is no acknowledgement/ confirmation by the Corporate Debtor that the Corporate Debtor had received any services, in part or full, pursuant to Purchase Order dated 25.02.2016 (ANNEXURE 'A'), and (iii) no evidence that the Corporate Debtor had ever paid any amount towards any services provided by the Operational Creditor. The proceedings initiated by the Operational Creditor is solely based on Purchase Agreement dated 25.02.2016 (ANNEXURE 'A') sans any evidence to show that such an agreement has ever been executed and sans evidence that any debt has become due and payable by the respondent/ Corporate Debtor - petition dismissed.
|