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2021 (4) TMI 98 - NATIONAL COMPANY LAW TRIBUNAL , BENGALURU BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - existence of debt and default or not - HELD THAT:- The Petitioner issued a Demand Notice dated 17.01.2018 under the provisions of the Code demanding payment in respect of an unpaid operational debt due from Respondent for an amount of ₹ 10,99,39,128/-. In pursuant to the above notice, the Respondent has given a reply dated 03.02.2018 by proposing to settle the issue. Since no settlement has been reached between the Parties, the Petitioner has earlier filed petition before this Adjudicating Authority, under Section 9 of the Code, by seeking to initiate CIRP for the same amount of amount as claimed in the instant Petition. The contention of the Petitioner that the Petitioner is fully entitled to invoke provisions of the Code once again by changing the Section of Code from Section 9 to Section 7 is not tenable and it is liable to be rejected. The Adjudicating Authority has given a clear finding that liberty granted to the Petitioner is to invoke any other remedy available under any Law, do not mean to invoke provisions of the Code again by changing Section. Since the judgment has become final, the Petitioner is estopped from invoking the provisions of the Code for the same set of facts. There is no correlation to various documents filed by the Parties with reference to the debt and default in question, and unless debt and default in question prima facie proved/established, CIRP cannot be initiated. There are no legally valid agreements produced in support of case of Petitioner, only one letter dated 10th April, 2014 started cause of action. And the Petitioner has not produced any legally valid agreement/contract executed between the Parties except by way of mere exchanging letters. Therefore, disputed question of fact and law on letters exchanged cannot be adjudicated in summary proceedings as contemplated under the provisions of Code, to decide question of debt and default. It is also not in dispute that the Petitioner has initiated suit before the Commercial Court, Bangalore, by way of Pre Institution Mediation in PIM No. 244/2019. Report has been issued by Bengaluru District Legal Services Authority, Bengaluru. The Petition is filed with an intention to recover the alleged outstanding amount after receiving part-payment which is against the object of Code - the Petitioner has filed the instant Petition on misconceived facts and law, and also failed to make out any prima facie case with regard to debt and default, so as to initiate CIRP against the Corporate Debtor. Petition dismissed.
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