TMI Blog2020 (7) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 5 (21) of the code which provides that operational debt means a claim in respect of provision of goods or services including employment or debt in respect of the payment of dues arising under any law for the time being enforce and payable to the central government, any state government or any local authority - the amount claimed is not an operational debt and the petition is not maintainable. Since the corporate debtor submitted that this payment of ₹ 30,00,000/- is towards part satisfaction of the Memorandum of Understanding (MoU) dated 24/08/2013, both in this proceedings, which was initiated well before the present petition, there is a pre-existing dispute in respect of the claim and hence the dispute raised by the Corporate debtor will squarely fall under the definition of dispute as defined under Section 5 (6) of the code which provides that dispute , includes a suit or arbitration proceedings relating to (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty. Petition dismissed. - C.P. (IB) No. 4605/NCLT/MB/2019 - - - Dated:- 15-7-2020 - Smt. Suchitra Kanuparthi, Member (Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kruptcy petition No. 1706/2019 on the file of NCLT Mumbai for initiation of Corporate Insolvency Resolution Process ( CIRP ) against the petitioner herein alleging that the petitioner herein defaulted in making payment to the extent of ₹ 7,50,77,317/- as provided under the Memorandum of Understanding (MoU) dated 24/08/2013 entered into between the petitioner herein and Mr. Prajendra Jaroli. The said petition was dismissed on 28/11/2019 and an appeal was preferred by Mr. Prajendra Jaroli before the National Company Law Appellate Tribunal wherein notice was issued by Hon ble NCLAT to the petitioner herein on 7/1/2020 and the same is pending. 4. Since the Corporate Debtor failed to refund the alleged advance amount, the petitioner on 14/11/2019 issued a demand notice under section 8 of the Code to the corporate debtor demanding the said sum of ₹ 30,75,408/-. 5. It is submitted that Mr. Prajendra Jaroli, in his pleadings in the above said C.P. No. 1706/2019 enclosed the Ledger account for the period from 1/4/2014 to 31/3/2019 of the petitioner herein in the books of account of the Corporate Debtor, wherein it was shown that the Corporate debtor herein is liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Memorandum of Understanding (MoU), left with no other alternative Mr. Prajendra Jaroli filed CP No. 1706/2019 against the petitioner on the file of NCLT, Mumbai; in the said petition Mr. Prajendra Jaroli specifically acknowledged the amount of ₹ 30,00,000/- paid by the petitioner in part satisfaction of the amount payable under Memorandum of Understanding (MoU); the debit notes raised by the petitioner for courier expenses were not received by the Corporate debtor and the same was ever accepted and authorised by the Corporate debtor; the DHL courier invoices were issued in the name of the petitioner and hence payable by the petitioner only and the corporate debtor is not liable to make payment for those invoices; the courier invoices were signed by Mr. Prajendra Jaroli as a consultant and authorised representative of the petitioner and hence the corporate debtor is liable for those courier charges; the petitioner has not addressed even a single communication from 31/12/2014 interalia demanding repayment of the purported advance given by the petitioner till the issue of demand notice; the last invoice raised by the corporate debtor was cleared by the petitioner on 7/9/2015; p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ledger. Hence the contention of the petitioner that ₹ 30,00,000/- is an advance towards commission payable to the corporate debtor is falsified. When the amount paid is a loan, the same does not fall under the definition of the Operational debt as provided under Section 5 (21) of the code which provides that operational debt means a claim in respect of provision of goods or services including employment or debt in respect of the payment of dues arising under any law for the time being enforce and payable to the central government, any state government or any local authority . Hence we hold that the amount claimed is not an operational debt and the petition is not maintainable. e. The petitioner herein, in the CP No. 1706/2019 filed by Mr. Prajendra Jaroli against this petitioner, filed their reply wherein in para J (page 237 of this petition) stated as below: In September 2018, the Corporate creditor was removed and asked to settle accounts. At this time he started asking for absurd amounts of money. On the contrary, on examination of the Bombay office books it appeared that not only were there cash withdrawals made by him but also that corporate debtor has made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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