TMI Blog2018 (8) TMI 1863X X X X Extracts X X X X X X X X Extracts X X X X ..... mencement of CIRP. If the remedy in any other law is available to the Operational Creditor the same can be availed, however, as far as the Insolvency Code is concerned the scope of 'admission' of a claim is limited one. Any observation, legal or factual, shall not prejudiced the rights of the Operational Creditor, if to be exercised under any other Law. Application dismissed. - CP. No. 1488/IBC/NCLT/MB/MAH/2017 - - - Dated:- 31-8-2018 - MR M. K. SHRAWAT, MEMBER (J) For The Applicant : Mr Ajy Kumar, Advocate i/b MZM Legal-Advocate For The Respondent : Mr Rashmin Khandekar, Advocate a/w Ms. Chaitrika Patki, Advocate i/b Vidhii partners-Advocates ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational Creditor had agreed to procure finance for Debtor. 6. Vide the said appointment letter it was agreed that the Debtor will pay and discharge the Operational Creditor with Professional fees of 1.5 %, plus service tax as applicable, of the total amount that Operational Creditor would procure for Debtor. 7. As per the statements of the Operational Creditor, due to his efforts the Debtor had received a sanction letter for financial support aggregating ₹ 75,00,000/- from the Edelweiss. 8. Pursuant to the same the Operational Creditor has raised an Invoice bearing no. SCSPL/002:16-17 dated 25.04.2016 for an amount of ₹ 1,29,37,500/- being the Professional Fees as agreed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Operational Creditor has initially preferred a Petition/Application under the provisions of the Code bearing no. CP No. 1022/IBC/NCLT/MB/MAH/2017 which was filed on behalf of the earlier name of the Operational Creditor i.e. M/s. Substantia Capital Services Private Limited. However, subsequently it was withdrawn by the Operational Creditor. 15. Thereafter after issuance of fresh Demand Notice dated 12.06.2017 the Operational Creditor has filed this Petition/Application. It is stated that the said notice has been duly received by the Debtor and on 23.06.2017 the Debtor has replied to the same. However, in the reply the Debtor has sought to raise a false dispute pertains to claimed amount. Submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor i.e. CP 1022/2017 has not been withdrawn but on the other hand it was 'Dismissed for non-prosecution' vide an order dated 13.06.2017. To that effect the Order of the concerned Court i.e. Court Room no. 1 of this very Tribunal which is annexed to the written submissions filed by the Operational Creditor itself. In light of this argument the Learned Advocate has pleaded that since in the said order there is no liberty to the Operational Creditor to file a fresh proceedings this Petition/ Application does not survive. 21. It is also pleaded that, the Operational Creditor has never appeared in the said matter before Court Room No. 1 despite of the reminders sent by the Debtor. It is also pleaded that the Demand Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to the notice of the Operational Creditor by the Debtor in the reply to the Demand Notice itself. And therefore it can be carved out that there is an 'existence of Dispute' in this case. 26. It is further noticed that the Operational Creditor before getting a proper Order in the earlier Petition/Application has issued a fresh Demand Notice and therefore the same has not survives in the eyes of Law. And since the Demand Notice which is an essential criterion for the filing of Petition/Application U/s. 9 is bad in Law therefore this Petition/Application deserves Rejection not only on this ground but also on the ground of the 'existence of Dispute'. 27. Before coming to the final conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pothetical or illusory, the adjudicating authority has to reject the application. 28. Hence, after careful perusal of the submissions made by the Learned Advocate for the Debtor in my opinion the Dispute raised by him is not a hypothetical or illusory; but it is a pre-existed real dispute between the Operational Creditor and the Debtor. It is worth to place on record that the Operational Creditor had knowledge of this Dispute. Hence, my conscientious view is that this Petition/Application is not fit for commencement of CIRP. If the remedy in any other law is available to the Operational Creditor the same can be availed, however, as far as the Insolvency Code is concerned the scope of 'admission' of a claim is limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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