TMI Blog2019 (1) TMI 1825X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor contended that the limitation expired in the month of June 2016. However, it is to be noted that on the continuous perusal of the petitioner, the Corporate Debtor has issued a cheque for ₹ 2,00,000/- on 02.05.2017 which was bounced thereafter. Since, the Corporate Debtors has issued a cheque on 02.05.2017, the fresh period limitation starts from the said date and therefore the contention of the Corporate Debtor has to fail - the petition is not barred by limitation. Pre-existing dispute or not - HELD THAT:- It is on record that the petitioner has filed an application before MSEFC on 20.12.2017 and thereafter issued the demand notice on 15.02.2018. It is on record that the application was pending before MSEFC before issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered under the Companies Act, 1956 having its registered office at H. No. 8-3-191-14, Housing Board No. 5/ A, Vengalrao Nagar, Hyderabad - 500 038 under section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 1B Code 2016) r/ w Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ( in short 1B Rules 2016). 2. Before proceeding with this matter, it would be appropriate to make a note of background facts for the purpose of determination of this petition. 3. The Petitioner and the Corporate Debtor entered into an agreement for the supply of goods by the petitioner on 16.05.2012 and in accordance with the said agreement, the petitioner supplied goods as per the requirement of the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Corporate Debtor submitted that the submission of the petitioner that claim of interest falls within the terms of 'debt' is erroneous and the said question of law whether the claim of interest falls within the term of debt was decided by NCLT, Chandigarh Bench in the matter of M/S. Wanbury Limited Vs M/S. Panacea Biotech Limited and the said NCLT Bench held that there is marked difference between the definite of terms 'financial debt' and 'operational debt'. Under section 5(8) of the Code, the term 'financial debts' means a debt along with interest, if any, which is disbursed against the consideration for time value of money and that is an inclusive definition. In the definition of the term 'operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute and in support of his submission he has relied on the judgment made by the Hon'ble Supreme Court in the matter of M/S. Mobilox Innovations Private Limited Vs Kirusa Software Private Limited wherein it is held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the application of an operational creditor must be rejected by the NCLT. Therefore, the learned Counsel submitted that there is a pre existing dispute before MSEFC and the present application is not maintainable and prayed for dismissal of the same. 6. Heard both the parties and perused the documents. 7. Having heard the submissions of the parties the issues before me are (a) Whether the petition is barred by limitation? (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited and it squarely applies to the present case. Further as seen from the documents filed on record, it is evident that there were email correspondences between the Petitioner and the Corporate Debtor regarding the faulty accessories. Therefore, It is well settled principal of law that when there is pre-existing dispute, the adjudication authority has no other option except reject the application filed under section 9 of the Code. The dispute pending before MSEFC not spurious, hypothetical or illusory but it is an admitted fact on record. The Corporate Debtor substantiated that there is a pre-existing dispute. Issue (c): In view of observation Issue- (b) above, I am of view that the petitioner has not made out any case for invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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