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2021 (3) TMI 939 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - service of demand notice - time limitation - existence of debt and dispute or not. Notice mandated under Section 8 of the IBC, 2016 was served or not? - HELD THAT:- The Respondent had got issued a Legal Notice dated 20.08.2018 prior to the issuance of the Demand Notice in September 2018, addressed to the Corporate Debtor at the Registered Address. The same has not been denied by the Corporate Debtor. Additionally, a notarized Affidavit of service has been filed with respect to handing over a copy of the Petition to the Office of the Corporate Debtor - Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and Sections 8 & 9 of the IBC, the letter issued by the Department of Posts, Government of India alongwith the fact that admittedly the Registered Office of the Corporate Debtor in the Master Data, Ministry of Corporate Affairs is “604, Kaushal Point, 4th Floor, Behind Uday Cinema, Ghatkopar (W), Mumbai - 400086” and the same is further reflected in the Annual Report, it is concluded that service of Demand Notice mandated under Section 8 of the IBC to the aforesaid address of the Corporate Debtor is satisfactory and is therefore held sufficient. Whether Application arises out of ‘time barred claims’? - HELD THAT:- The amount became ‘due and payable’ on 22.09.2016 when only a part payment was made. Section 3(11) defines “debt” as a liability or Application in respect of a claim which is due from any person and includes Financial Debt and Operational Debt. Section 3(12) defines “default” as 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 the Corporate Debtor as the case may be. In the instant case part or instalment of the amount of debt has become ‘due and payable’ as on 22.09.2016. It being a running account, considering the manner in which such businesses are conducted and accounts are kept, it would be material to see when the parties concerned treat the debt to be in ‘default’. It is pertinent to mention that the date of default mentioned in Form V of the Application is 22.09.2016 and the Application was filed in October, 2018 - the Application was filed well within the period of limitation. Whether there is a ‘‘Pre-Existing Dispute’’ prior to the filing of the Application under Section 9 of the IBC? - HELD THAT:- The contention of the Learned Counsel for the Appellant regarding false and fabricated invoices is unsustainable having regard to the fact that the invoices on record bear the stamp of the Corporate Debtor by way of an acknowledgement - going by the test of the ‘existence of dispute’ it is clear that the Appellant has not raised any plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. There are no illegality or infirmity in the Impugned Order passed by the Ld. Adjudicating Authority - appeal dismissed.
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