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2021 (10) TMI 299 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Debtor-Creditor relationship between the Corporate Debtor and the Operational Creditor - Whether the claim of ₹ 33.98 Crores is an Operational Debt legally recoverable from GIPL? - HELD THAT:- In the Application under Section 9 of the IBC for the amount i.e. ₹ 33.98 Crores in which, admittedly ₹ 10 Crores has been paid by the GIPL and the remaining amount is to be paid by AJVPL and in case they failed to pay the amount, the Operational Creditor (SPJV) can recover the amount from AJVPL and the guarantors i.e. MIAPL and MK. However, the SPJV cannot recover any amount under the agreement dated 14.12.2013 from the GIPL - for the purpose of this amount, there is no relationship between them as Operational Creditor (SPJV) and Corporate Debtor (GIPL). Whether the claim of ₹ 2.03 Crores is an Operational Debt legally recoverable from GIPL? - HELD THAT:- SPJV has not completed the work to the satisfaction of GIPL and therefore, they have withheld ₹ 2.03 Crores and subsequently, released ₹ 5 Lacs and no completion certificate was issued in favour of SPJV - there is a pre-existing dispute between the parties, therefore, Section 9 Application is not maintainable. Hon’ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has held that the Adjudicating Authority is to see at the time of admitting or rejecting the Application whether there is plausible contention which requires further investigation and that the dispute is not patently feeble legal argument or an assertion of fact unsupported by evidence. Therefore, so long dispute exist in fact and it is not spurious hypothetical or imaginary, Adjudicating Authority has to reject the Application. Moreover, the existence of dispute must be pre-existing i.e. it must exit before the receipt of demand notice or invoice. In the present case, there is a pre-existing dispute, therefore, the Application under Section 9 of the IBC is liable to be dismissed. However, Ld. Adjudicating Authority has admitted the Application and initiated CIRP without considering the documents. Appeal allowed.
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