TMI Blog2018 (9) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier point of time only and not later on. The provisions of I&B Code, 2016 under section 8(2)(a) allows him to show the existence of dispute or pendency of the suit within 10 days from the receipt of demand notice from the Operational Creditor. It has been done in this case. Moreover, the Corporate Debtor has elaborately stated what is exact dispute in between them. It is not necessary to go into that details but suffice to mention herein is that the dispute cannot be said to be feeble on facts or unsustainable as based only on the legal arguments. Hence, hold that this petition under section 9 of I&B Code, 2016 is not maintainable. The petition under section 9 of the I&B Code, 2016 filed against the Corporate Debtor stands reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Corporate Debtor for winding up. However, it was also dismissed by this Tribunal holding that, previous winding up petition filed in the Hon'ble High Court at Calcutta being CP No.667/2017 under sections 433 and 434 of the Companies Act was dismissed by the order dated 21.09.2016. It is pertinent to mention here that the petitioner filed fresh petition first time on 05.01.2017 before the NCLT which is not a transferred petition from the Hon'ble High Court at Calcutta. The present petition is not maintainable on the ground that no notice under section 8(1) of the I B Code read with Rule 5 Form-3 of the Rules, 2016 was given prior to filing of this petition. 3. It is further observed that the petition is also not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable. 6. On backdrop of the above fact and on 12.01.2018, the Operational Creditor filed this petition against the Corporate Debtor to start CIRP of the Corporate Debtor stating that they are unable to pay sale price of the raw materials worth ₹ 2,25,90,062/-. 7. Upon service of the notice of this petition, the Corporate Debtor appeared in this proceeding. They filed affidavit-in-reply dated 03.03.2018. It is their contention that they have filed the suit bearing no.05 of 2017 against the Corporate Debtor in the Court of Civil Judge (Sr. Division) at Saraikela raising dispute about the debt as claimed. As the dispute is raised prior to receipt of notice under section 8 of I B Code and the suit is also filed, this petition is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. Counsel further submitted that sub-section (2) of section 8 of I B Code, requires the Corporate Debtor to reply to the demand notice within ten days pointing out the existence of dispute or record the pendency of suit. Existence of dispute has to be construed as the existence of dispute prior to initiation of the first proceeding against the Corporate Debtor in the year 2016. The Corporate Debtor has admittedly filed the suit in the year 2017, i.e. much after the Operational Creditor proceeded against the Corporate Debtor in the Hon'ble High Court. According to the Ld. Counsel, it is a created dispute raised after-thought only to thwart this petition. The petition may be admitted. 10. As against this, Ld. Sr. Counsel for the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of both the Ld. Counsels. The core of controversy as appears as to whether the term existence of dispute as appears in section 8(2)(a) of the I B code relates to the dispute should have been raised even prior to coming into operation the provisions of I B Code, 2016 when some proceedings were filed against the Corporate Debtor by the Operational Creditor. My answer to this question is certainly in the negative. By virtue of provisions of section 8(2) of the I B Code, the defence is provided to the Corporate Debtor in the proceeding filed against them to start CIRP by the Operational Creditor for the inability to pay the debt. In this case, the Corporate Debtor had replied the demand notice within 10 days informing about the pendency o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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