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2021 (5) TMI 609 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational Creditors or not - existence of debt and dispute or not - contention of the Petitioner's counsel is that since no dispute has been raised within 10 days from the receipt of the demand notice, therefore, it is no dispute - HELD THAT:- Earlier when the first demand notice was served upon the Corporate Debtor, he sent the reply within the prescribed period and raised the dispute. However, that company petition was dismissed as withdrawn at the request of the petitioner on technical ground - The contention of petitioner's counsel is that since in that matter, the demand notice was delivered through the counsel, the petitioner during the course of hearing had made a prayer to withdraw the petitioner with a liberty to file a fresh application and accordingly, that Application was dismissed as withdrawn. Again, the second demand notice was served upon the Corporate Debtor. Of course, the Corporate Debtor had not given reply to that demand notice but after appearance, the Corporate Debtor has filed the reply and annexed the emails exchanged between the parties. There are several emails exchanged between the parties regarding the termination of contract letter dated 20.11.2014 and dispute being raised regarding the quality of the work and the violation of the terms and conditions of the contract by the Corporate Debtor, which compelled the Corporate Debtor to cancel the contract - petitioner has failed to produce any document to show that in the light of the email exchanged between the parties, the termination of contract was recalled. The documents placed by the Corporate Debtor on record have established that there was a pre-existing dispute between the parties regarding the quality of the goods as well as the amount of debt and the matter had already been referred as per Clause 39.00 of the agreement for Arbitration - even no reply to the demand notice was sent in terms of Section 8(2) of the IBC, 2016, the Corporate Debtor can raise a dispute by filing the reply and that has been done by the Corporate Debtor - Also, the deduction of TDS amounts to acknowledgement of debt. Time Limitation - HELD THAT:- In Part-IV column-II, the applicant has mentioned several dates of default and according to that, the first date of default is 30.01.2010 and the last date of default is 27.04.2017, whereas the contention of the respondent is that the contract was terminated on 20.11.2014 and therefore, the cause of action arose on that day - Mere plain reading of the provision shows that the application must be filed within three years from the date when the right to apply accrues - The petition is also barred by limitation. Petition dismissed.
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