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2022 (3) TMI 949 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The existence of litigation clearly shows the disputes pending between the parties with regard to the calculation of dues. It is also evident from the reply to the Demand Notice that several conditions mentioned in the tender and the provisions of the Drugs and Cosmetics Act were violated by the applicant. The applicant included misbranded and adulterated drugs The packing of drugs was not as per the requirement of tender. A house fly was seen in one of the bottles of Cloxacillin injection. Numerous complaints regarding the quality of drugs supplied by the applicant herein were received from the Corporate Debtor’s warehouses. The Corporate Debtor requested the applicant to replace the damaged and adulterated drugs. However, they did not respond to this request. Therefore, the Corporate Debtor sent a notice to the applicant asking them to appear in person to explain why they should not be blacklisted for non-adherence of tender conditions and violation of Drugs and Cosmetics Act. There is a pre-existing dispute with regard to the calculation of dues and that the Writ Petition with regard to the blacklisting of the Operational creditor for the supply of non-standard quality of drugs supplied by them is still pending before the Hon’ble High Court of Kerala. The said fact is suppressed by the Operational Creditor in this application, as rightly pointed out by the Corporate Debtor/ Respondents - there are no merit in this application warranting admission for initiating Corporate Insolvency Resolution Process against the Respondent. Hence, this application which is bereft of merit is dismissed. It is stated that the Operational Creditor (Sic) (Corporate Debtor) has neither replied nor disputed the Demand Notice till date. Whereas, in the application on Page 23, the applicant itself has produced a reply received by them from the Corporate Debtor – Kerala Medical Service Corporation Limited stating the pre-existence of dispute. The applicant has suppressed many facts and tried to abuse the process of law by filing this application. There are no merit in this application warranting admission for initiating Corporate Insolvency Resolution Process against the Respondent. Hence, this application which is bereft of merit is dismissed.
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