TMI Blog2018 (8) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... n before the hon'ble Bombay High Court under section 433(e) of the Companies Act, 1956 on September 30, 2016 but subsequently after enactment of the Insolvency and Bankruptcy Code, 2016, this petition has been transferred to this Bench and thereafter the operational creditor has furnished Form 5 under rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter as the Rules) in the capacity of operational creditor on June 30, 2017 by invoking the provisions of section 9 of the Insolvency and Bankruptcy Code (hereinafter as the Code). 2. In the requisite form, under the head particulars of corporate debtor the description of the debtor is stated as, M/s. Pride Hotel P. Ltd. (hereinafter as debtor) having registered address at A-908, Dalamal Tower, Nariman Point, Churchgate, Mumbai, Maharashtra-400 021. 3. Further under the head particulars of operational debt the total amount in default is stated as ₹ 13,45,603 excluding further interest thereon at the rate of 24 per cent. per annum. Background of the case 4. The operational creditor is an incorporated company engaged in the business of water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the payment the operational creditor has issued a statutory notice dated December 1, 2015 as per the provisions of the Companies Act. Copy of the said notice is attached with the petition. 13. It is further stated that, the said notice were duly received by the debtor and the debtor has also replied to the same. It is further stated that, in the said reply the debtor has merely denied his liability to make the payment. Copy of the reply is annexed with the petition. 14. Further that, since the petition has been transferred to this Bench, as per the provisions of the Code, the operational creditor has furnished the requisite Form under the Code. The copy of Form 5 is also served upon the debtor and it has been duly received by the debtor. The debtor has filed reply to Form 5. 15. It is further stated that though the debtor is raising the dispute now it could have been raised before making the part-payment towards the second invoice. The part-payment is an evidence of an acceptance of debt. 16. The learned advocate for the operational creditor has finally argued that, since the outstanding amount is not paid and the debtor is merely denying the debt th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork has not been done properly. 21. It is further stated that, in this petition/application the operational creditor has claimed an amount of ₹ 6,09,113 which is supposed to be claimed by two sub-contractors and the operational creditor is not party to those contracts/work orders. It is further stated that, though the said amount has been claimed by the operational creditor there is nothing in support of the claimed amount which is payable to the sub-contractors. 22. It is finally argued that, despite the debtor has questioned the quality of work, the operational creditor has issued a statutory notice under section 433(e) of the Companies Act, 1956 and has filed the petition for winding up of the company/debtor claiming the amount of ₹ 13,45,603. As the said claim is disputed by the debtor this petition/application may be dis- missed with costs. Findings 23. I have gone through the submissions made by both the parties and also examined the pleadings on record. While going through the pleadings it has come to the notice that the debtor had replied to the statutory notice issued by the operational creditor within the stipulated time. The cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that the debt is disputed by the debtor time and again. 27. Considering the above facts and circumstances a conclusion can be drawn that the debt claimed in this petition/application has an essence of a dispute ; therefore, this petition/application cannot be admitted for the CIRP and deserves rejection. 28. Before coming to the final conclusion it is worth to place reliance on the decision cited by the learned advocate of the debtor of the hon'ble Supreme Court of India in the case of Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp Cas 324 (SC) ; [2017] 4 Comp LJ 255 (SC), dated September 21, 2017 which is reproduced as follows (page 373 of 205 Comp Cas) : 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under section 9(5)(ii)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the 'existence' of a dis pute or the fact that a s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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