TMI Blog2019 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Creditor by the Corporate Debtor, it cannot be called as, the Applicant has proved the existence of debt and existence of default between the parties. It is not the case of either of them, questioning veracity of the correspondence passed between the parties. By looking at the entire correspondence in totality, it is clear that the claim amount raised by the Operational Creditor has been disputed which is falling within the compass of definition u/s.5(6)(a) with regard to the existence of amount on debt as well as with regard to the services rendered by the Operational Creditor because in the Corporate Debtor correspondence, it has been mentioned that because of frequent tripping, the Corporate Debtor was forced to take servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Principal and ₹ 4,35,803 towards Interest put together ₹ 1,17,65,461 as on 20.04.2019. 2. The crux of the case is, the Applicant says that there is no dispute with regard to its claim before issual of Sec.8 notice to the Corporate Debtor, as against which, the Corporate Debtor counsel has stated that there is lot of correspondences back and forth between the Operational Creditor and the Corporate Debtor with regard to the services and the claim raised by this Operational Creditor, indeed this Operational Creditor stopped operating the Gensets (rendering services) to the Corporate Debtor on 13.12.2018. 3. In view thereof, the Corporate Debtor counsel has sought for dismissal of this Insolvency and Bankruptcy Application o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From: J. Sivakumar Sent : 18 December, 2018 11.44 AM To : Jayesh Goswami Subject : Discontinuance of Gas Gensets (1.024 MW 1.364 MW) Dear Mr.Jayesh Goswami, As per our CMD's instructions and with reference to trailing mails, since the both engines are stopped and kept idle by you we would like to discontinue your gensets L024 MW and 1.364 MI/V, Kindly arrange to demobilize and remove gas engine plants from our premises immediately. Kind Regards, J.Sivakumar' 4. Rejoining to its contentions, the Operational Creditor counsel has further submitted that this Corporate Debtor raised this dispute in the month of Nov'2018 as against the claims raised from July to October 2018, whereby, the dispute subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making payment, but final figure would be arrived at only after discussing, therefore, the Operational Creditor counsel had taken out a sentence from that e-mail to say that this is an unconditional admission on behalf of the Corporate Debtor to pay the amount as demanded by the Operational Creditor. It is a qualified statement stating that if their Accounts Department's observations are correct, then payment would be paid accordingly. 7. By going through the entire correspondence, it is a fact that as to claim amount is concerned, differences are in existence in between the parties and it is also evident on record that the Operational Creditor terminated rendering services to the Corporate Debtor before completion of the tenure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate Limited in Civil Appeal No.9405 of 2017, decided on September 21, 2017 which is as follows: Para 54 - According to the learned counsel for the respondent, the definition of dispute would indicate that since NDA does not fall within any of the three sub-clauses of Section 5(6), no dispute is there on the facts of this case. We are afraid that we cannot accede to such a contention. First and foremost, the definition is an inclusive one, and we have seen that the word includes substituted the word means which occurred in the first Insolvency and Bankruptcy Bill. Secondly, the present is not a case of a suit or arbitration proceeding filed before receipt of notice - Section 5(6) only deals with suits or arbitration proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payments which are long stuck up We, therefore, allow the present appeal and set aside the judgment of the Appellate Tribunal. There shall, however, be no order as to costs As to para abovementioned, it is not contrary to the definition of 5(6)(a) given for dispute in the IBC because in the very same judgement in other paras, it has categorically mentioned that the Corporate Debtor has proved existence of dispute over the services and the claim amount raised by the Operational Creditor, therefore we cannot read something into the factual aspect so as to say that no dispute is in existence between the parties. 11. In view of the email correspondence between the parties and having noticed that the Corporate Debtor having already raised iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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