TMI Blog2020 (9) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... RUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT] and is hereby fit to be set aside and the Appeal is allowed. Corporate Debtor is released from the rigor of the Corporate Insolvency Resolution Process . All actions taken by the Interim Resolution Professional / Resolution Professional and Committee of Creditors , if any, are declared illegal and set-aside - matter remitted to the Ld. Adjudicating Authority to decide fees and costs of CIRP payable to IRP/RP, which shall be borne by the Operational Creditor / Respondent No. 1. Appeal allowed. - Company Appeal (AT) (Insolvency) No. 1208 of 2019 - - - Dated:- 3-9-2020 - Justice Anant Bijay Singh Member ( Judicial ) And Kanthi Narahari Member ( Technical ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her of the brothers). 4. The company into business of marketing industrial field, construction chemicals, pipe wrapping, job work contracts etc. and also supplying of Road Bitumen. 5. The Megamet Steels Private Limited Respondent No. 1 (Operational Creditor) had business relations with Respondent No. 2 since 2017. 6. That against the purchase of Bitumen from the Operational Creditor / Respondent No. 1, the Respondent No. 2 made timely payments and there is no bill pending. 7. While so the Respondent No. 1 filed an application under Section 9 of the IBC before the Ld. Adjudicating Authority on the ground that the Respondent No. 2 (Corporate Debtor) failed to make payment of a sum of ₹ 14,78,496/- (Rupees fourteen lakhs sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the parties, Application under Section 9 was admitted and initiated CIRP and appointed the Interim Resolution Professional - Mr. Pawan Kumar Ramdhan Agarwal. 11. The Appeal was filed on 06.11.2019 and Notices were issued to the Respondents. thereafter, the Respondents appeared and filed their Replies. Submissions on behalf of the Appellant 12. The learned counsel for the Appellant during the course of argument and in his written submissions assailed the impugned order on two grounds, while referring to Annexure- A-11 at page 130 of the Appeal Paper Book which is the Notice issued to the Respondent No. 2 along with copy of the Appeal, where signature of the learned counsel Shri. Anil Agarwal, Advocate for the Respondent No. 1 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance three invoices kindly provide the despatch details as we haven t received any material, if the same not received within two to three days the bill will reversed from ours books of accounts. Thanks regards, 17. Further e-mail dated 13th September, 2017 at page 46 of the Rejoinder informing that they have not received any material against three invoices Nos. 306, 307 and 309 from the Respondent No. 1 and no denial have been made by Respondent No. 1 and no denial has been made by Respondent No. 1. 18. Learned counsel for the Appellant submitted that the Ld. Adjudicating Authority has not considered these aspects of the matter as there was a preexisting dispute between the parties much prior to the filing of the Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding ₹ 1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? And (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent No. 1 in his written submissions tried to make out the case the e-mails dated 09.09.2017 and 13.09.2017 forged and fabricated. 26. After going through the records and hearing the counsel for the parties, we are of the considered view that the Ld. Adjudicating Authority have failed to consider the facts that there was a pre-existing dispute between the parties much prior to filing of application under Section 9 of the IBC. The impugned order cannot be sustained in the eye of Law and in view of the Judgment of the Hon ble Supreme Court (Supra) and is hereby fit to be set aside and the Appeal is allowed. ORDER For the reason(s) aforesaid, we set-aside the impugned order dated 25.10.2019 passed by the Ld. Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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