TMI Blog2019 (8) TMI 1730X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor, all that is required to be seen is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence as held by the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited. [ 2017 (9) TMI 1270 - SUPREME COURT ], where it was held that the knowledge on the part of the Corporate Debtor that the Operational Creditor would certainly agitate his grievance against them by filing a fresh petition under section 9 of the Code. This knowledge on the part of the Corporate Debtor must be construed that there is ample opportunity to maliciously raise a disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Application to Adjudicating Authority) Rules, 2016. FACTS OF THE CASE 2. According to the Petition filed by the Petitioner 4 work orders were issued by the Corporate Debtor upon Petitioner for hiring 70 Mt Zoomilion Crawler Crane (herein referred to as the said Crane ) on 4 March 2013,16 December 2013,5 April 2014 12 June 2014. The term of usage of six months of a rate of ₹ 2,80,000/- per month. As per clause 1 of the terms and conditions of the said Work Order, the Operational Creditor was required to mobilize the said crane immediately and same ought to have reached the site within 7 days. Therefore, after issuance of the said Work Order on 08.03.2013, the Crane reached the site on 15.03.2013. 3. The Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted is also a clear admission of liability. Therefore, according to the Petitioner, the total amount owed by the Corporate Debtor is ₹ 51,72,914/-. 7. The Corporate Debtor points out that while all of this was happening Contract awarded by the Kandla Port Trust (Principal Employer) to the Corporate Debtor was terminated. Since, the Corporate Debtor failed in making payment to the Petitioner even after various a statutory notice dated 02.02.2016 was sent through advocates of Petitioner to Corporate Debtor u/s 434 of the Companies Act. 1956. 8. Thereafter, a Company Petition no. CPL/644/2016 for winding up u/s 433 (e) and 434 of the Companies Act, 1956 was filed on 08.08.2016 by the Petitioner before the Hon ble High at Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before getting into any other reasoning, it is important that we deal with this preliminary objection raised by the Corporate Debtor. It is argued by the Corporate Debtor that a Commercial Suit was filed by the Corporate Debtor on 27.09.2017, before issuance of a fresh demand notice under the Code on the Corporate Debtor on 15 December 2017 [Refer Exhibit S at page 129 of the Application]. The Corporate Debtor further argued that a pending suit prior to the receipt of the demand notice, constituted a pending dispute between the parties. 14. The Corporate Debtor submits that 4 different amounts have been claimed by the Petitioner at different points in time from the Corporate Debtor. For instance, an amount of ₹ 50,65,266/- was cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the 86 adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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