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2022 (10) TMI 636 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - proper service of Form-3 notice on Corporate Debtor or not - HELD THAT:- In the first instance the Corporate Debtor was set ex-parte and an application was moved by the Corporate Debtor for setting aside the ex-parte order and the same was allowed by virtue of the order dated 14.03.2022. Observing that the notice was booked on 17.07.2021 and not on 16.07.2021 and was delivered on 27.07.2021 but not on 20.07.2021 as mentioned in the counter and the notice sent by the Tribunal on 22.11.2021 is after the Applicant has shifted his office to Vijayawada and Form No. INC 22 shows that the office was shifted to Vijayawada on 03.08.2021 itself this Tribunal allowed the application filed seeking to set aside the ex-parte order - Even according to the Counsel for the Corporate Debtor the office was shifted to Vijayawada on 03.08.2021 and the notice was delivered before 03.08.2021 which may be either on 27.07.2021 or 20.07.2021. The track record clearly shows that the item is delivered. Hence, when the office was functioning at Vishakhapatnam by 20.07.2021 and 27.07.2021 it has to be assumed that the notice was delivered. Due to the said fact not being brought to the notice of the Court during the hearing of the Interlocutory Application filed seeking to set aside the ex-parte order, the Tribunal relied on the dates mentioned in the application and observed as such. But considering the track record, it has to be held that the notice was duly served on the Corporate Debtor - this point is answered by holding that Form-3 notice was duly served on the Corporate Debtor. However the same might have lost sight of the concerned due to the work of shifting the office having been going on. Whether the Operational Creditor could prove the debt and whether the same is acknowledged by the Corporate Debtor? - HELD THAT:- Since the burden of proving the debt is on the OC, he fails due to non filing of any supporting documents to the invoices. Failure to reply to the demand notice, has an assumed reason. Moreover mere failure to reply, does not entitle the OC for the prayed reliefs - The admitted liability is Rs. 18 Lakhs and odd. The argument of the Counsel for the Corporate Debtor with regard to the said debt due is that it is below the threshold limit of Rs. 1 Crore and hence, an application under IBC is not maintainable even if it is considered that the said amount is due and is defaulted. The said argument is cogent since, the threshold limit of Rs. 1 Lakh is done away with by virtue of the Notification No. 1205(E), dated 24-3-2020. Petition dismissed.
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