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TMI Blog2019 (8) TMI 1733X X X X Extracts X X X X X X X X Extracts X X X X ..... nkruptcy (Application to Adjudicating Authority) Rules, 2016. Facts of the case: 2. The Petitioner is a company undergoing Corporate Insolvency Resolution Process as per the order passed by the National Company Law Tribunal dated 12.07.2017 in pursuance of the above order, the Tribunal had appointed Mr. Dushyant Dave as the Interim Resolution Professional. Thereafter, he was also confirmed as the Resolution Professional by the CoC on 12.10.2017. 3. The Petitioner Company had entered into two agreements for supply of vehicles dated 09.07.2011 and 01.07.2013. The Petitioner enclosed the following documents in support of the above said operational debts: a. Copy of details of transactions on account of which debt fell due and payment along with the date from which such debt fell due. b. Copy of Notice of repayment dated 13.11.2017. c. Copy of Agreement for supply of vehicles dated 09.09.2011. d. Copy of Agreement for supply of vehicles dated 01.07.2013. e. Copy of Rejoinder Notice dated 06.07.2018 for repayment of outstanding amounts to the Corporate Debtor. f. Copy of statement of accounts of the Operational Creditor with Oriental Bank of Commerce and ICICI Bank. g. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Petition is not maintainable under Section 11 of the Code since the Petitioner company itself under undergoing CIRP pursuant to the order passed by the NCLT, Ahemedabad bench dated 12.09.2017. It is argued that the petitioner is not eligible to file an application under section 9 of the Code. Reliance for the same has been placed on M/s Mandhana Industries Limited Vs M/s Instyle Exports Private Limited (CP 301/2018 passed by NCLT, New Delhi) b) It is also brought to our notice by the Corporate Debtor that since the Resolution period has already lapsed, therefore neither the CoC nor the Resolution Professional who is representing the Petitioner exist. c) According to the Corporate Debtor there lies a pre-existing dispute between the parties since the Corporate Debtor has sent various letters dated 31.01.2018, 17.07.2018 and 23.08.2018 disputing the claim of the Petitioner. Reliance herein has been places on Mobilox Innovations Private Limited vs. Kirusa Software Private Limited Judgement of the Hon'ble Supreme Court. 8. Thereafter, the Petitioner has filed his Rejoinder, wherein he has argued that the present Petition is not barred by Section 11 of the Code. Reliance has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency proceedings have been initiated. Relevant portion of the judgement is as follows: "22. This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of whom a liquidation order has been made. From a reading of this Section, it does not follow that until a liquidation order has been made against the corporate debtor, an Insolvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal. Hence, any reference to Section 11 in the context of the problem before us is wholly irrelevant. However, we decline to interfere with the ultimate order passed by the Appellate Tribunal because it is clear that the financial creditor's application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code." Further, in order to understand the legislative intent of the code reliance has to be placed on 'Notes on Clauses' of the Insolvency and Bankruptcy Bill, 2016, which goes as follows: "Clause 11 lists out the persons who are not eligible to make an application to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties? The Hon'ble Supreme Court in its landmark judgement of the Mobilox Innovations Private Limited vs. Kirusa Software Private Limited has said: "all that the 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." Therefore, when we look into the Genuity of the dispute we notice that the Corporate Debtor had never even once raised a single shred of objection or dispute against the Petitioner in the past seven years about either quality of good or anything else. It was for the first time that the Corporate Debtor only after receiving a notice from the Petitioner started raising disputes. Therefore, from prima facie it is clear that the 'dispute' raised by the Corporate Debtor is patently feeble and is an assertion which is not supported by any evidence. This defence of the Corporate Debtor also has no merit and is therefore rejected. 10. The above facts show that the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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