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2022 (2) TMI 464 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - It is the stand of the Appellant that the impugned order was passed by the ‘Adjudicating Authority’, resting on presumption and assumption and there was no proper appreciation of Documents on Record - HELD THAT:- Under Section 9 of the Code, an ‘Adjudicating Authority’ is required to examine before admitting or rejecting an application under Section 9 of the Code whether the ‘dispute’ raised by the ‘Corporate Debtor’ qualify as a ‘dispute’, in terms of Section 5 (6) of the Code and whether Notice of Dispute given by the ‘Corporate Debtor’ satisfies the conditions prescribed in Section 8(2) of the Code. The ‘Adjudicating Authority’ is to scrutinise the attendant circumstances to the issue of ‘Demand Notice’ with a view to decide whether a bona fide dispute exists between the parties. The ‘dispute’ must be one which necessitates more investigation and at this juncture, the ‘Adjudicating Authority’ will not examine the merits of the ‘dispute’. If the ‘dispute’ is not an imaginary one or a hypothetical one and if the ‘dispute’ really exists, the application is liable to be rejected, as opined by this Tribunal. If there is plausible contention raised on behalf of the concerned party, which requires a further investigation, then the application cannot be admitted. The ‘dispute’ in whatever form, ought to have been raised before the ‘Demand Notice’ under section 8 of the Code was served on the ‘Corporate Debtor’. The I&B Code, 2016 is not a ‘Debt Enforcement Procedure’. The application of an ‘operational creditor’ is not maintainable, if the ‘Corporate Debtor’ has a dispute about its outstanding/debt. The ‘dispute’ is to be seen by the ‘Adjudicating Authority’ as one based on tenable substantial grounds. In this connection, it is relevantly pointed out that if there is a ‘dispute’ about the debt, then, it is for the ‘applicant’ to approach the competent Civil Court to decide the triable issues. In short, the ‘Adjudicating Authority/Appellate Tribunal’ is not to be utilised as a ‘Debt Collecting Agent’. The Appellant/Operational Creditor/Applicant is not in a position to establish that the ‘Debt due’ free from any ‘Dispute’. The ‘Adjudicating Authority’ cannot admit the application filed by the Appellant/Applicant (under Section 9 of the Code), based on assumptions and presumptions. In short, in the instant case the ‘Dispute’ raised by the Respondent/Corporate Debtor is not a mere denial but the same is projected on a tangible ground - this Tribunal holds that the ‘Adjudicating Authority’ came to the right conclusion that the ‘Debt’ claimed by the Appellant/Operational Creditor cannot be decided in a summary jurisdiction under the I&B Code, 2016 and opined that it would be appropriate for the parties to relegate to civil proceedings or to arbitration if the same was contemplated and dismissed the CP 328/IB/2018 which requires no interference in the hands of this Tribunal in ‘Appeal’. Appeal dismissed.
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