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2022 (4) TMI 572 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - privity of contract between Operational Creditor and Corporate Debtor - whether the Adjudicating Authority was justified in admitting the Application filed by the ‘Operational Creditor’ under Section 9 of the Code? - HELD THAT:- The material on record evidences that the ‘Corporate Debtor’ deposited TDS of ₹ 4,12,000/- which is the TDS on the entire amount of the Invoice of ₹ 2,06,00,000/-. It is not disputed that the ‘Operational Creditor’ deposited the GST of ₹ 37,08,000/- on the entire amount of the Invoice in favour of the ‘Corporate Debtor’ and the benefit of the said amount as input amount has been taken by the ‘Corporate Debtor’. A perusal of the Invoices evidences that the Tax Invoice was raised in favour of the ‘Corporate Debtor’ and not on M/s. Cox & Kings. It is significant to mention that the part payment was also made by the ‘Corporate Debtor’ and not by M/s. Cox & Kings. This Tribunal is of the considered view that the privity of contract is between the ‘Operational Creditor’ and the ‘Corporate Debtor’ and therefore the amount which is in default is ‘due and payable’. In so far as Pre-Existence of Dispute warranting rejection of Application of triggering of CIRP under Section 9 of the Code is concerned, a bare perusal of the material on record filed by the ‘Corporate Debtor’ does not evidence any dispute which is not spurious or illusory and requires investigation. There is no hesitation in holding that the Appellant has hired the services of the Respondent for executing the event and owes an obligation to pay for the same, thereby bringing it within the fold of ‘Operational Debt’ and therefore the first Respondent holds the status of an ‘Operational Creditor’ qua the Appellant - there is no infirmity in the Order of the Adjudicating Authority in holding that there is an ‘Operational Debt’ in respect of the ‘default’ which is alleged and is therefore payable in law. The finding is perfectly justified in the facts and circumstances of the case - appeal dismissed.
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