TMI Blog2022 (9) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... ible materials/evidence. The defence is not spurious or plainly frivolous or vexatious. The dispute very much existed between the parties way before the demand notice was sent by the Operational Creditor i.e., 13 July, 2019. Hence, the Petition is dismissed. - C.P (IB) No. 1289/KB/2019 - - - Dated:- 12-9-2022 - Shri Rohit Kapoor : Member ( Judicial ) Shri Balraj Joshi : Member ( Technical ) For the Operational Creditor : Mr. A. K. Shrivastava , Advocate : Mr. Akash Sharma , Advocate For the Corporate Debtor : Mr. Joy Saha , Sr. Adv. : Mr. Reetobroto Mitra , Adv. : Ms. Jayati Chowdhury , Adv. : Ms. Sucheta Mitra , Adv. : Mr. Rajesh Upadhyay , Adv. ORDER Per Balraj Joshi , Member ( Technical ) 1. The Court con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2017 for Balance Civil Construction works of MIG-2, (B+G+13) with fire Refuse Slab, Mumpty, Lift Machine Room, Overhead Tank, Basement, Ramp, etc at Teenkanya Housing Project, AA-IIB, New Town, Rajarhat, Kolkata ( Purchase Order Two ). 5.2 It was agreed by the Corporate Debtor that payments will be released within fifteen days on receipt of the bills issued by the Operational Creditor [Page 45 of the Petition]. The said Civil Constructions were to be carried during the period of 2017 to 2018. Accordingly, the Operational Creditor raised Tax Invoices for both the purchase Orders. 5.3 For Purchase Order One , the Operational Creditor received part payment from the Corporate Debtor. Moreover, during the civil construction of the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the debt fell due from the fifteen days of the invoices raised by the Operational Creditor. 5.8 The last payment was made on 11 February, 2019 of Rs.5,00,000/- (Rupees Five Lakh only) by the Corporate Debtor. Thus, the aggregate amount of dues receivable form the Corporate Debtor after deducting the part payments is Rs.1,39,91,407/- (Rupees One Crore Thirty Nine Lakh Ninety One Thousand Four Hundred Seven only), excluding the interest. 5.9 Despite several follow ups and mails, the Corporate Debtor failed and neglected to pay the outstanding dues to the Operational Creditor. A demand notice dated 13 July, 2019 under section 8 of the code was sent to the Corporate Debtor, and the Corporate Debtor replied to the said notice vide its re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se project for an aggregate value in excess of Rs.50.57 lakhs of which the Operational Creditor claims outstanding of Rs.26,64,250/-. Such allegations are bald, without particulars, absolutely vain and liable to be rejected. The Operational Creditor had itself contradicted its claim in the application. 6.6 Further, the operational creditor has also alleged that the MIG-II project is in excess of Rs.2.58 crore out of which Rs.1,45,66,589/- has already been paid. Thus, contradicting its stand that a sum of Rs.14,91,920/- is only due and payable. It is denied that any excess work was done by the Operational Creditor or that a sum of Rs.1,39,91,407/- or that any amount is due or payable by the Corporate Debtor to the Operational Creditor as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. .. 11. The Hon ble Supreme Court in Mobilox (Supra) has also observed that all that the Adjudicating Authority has to see at the stage of Admission 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 or a moonshine defence unsupported by tangible materials/evidence. 12. In this context it is pertinent to mention that the disputes raised by the Corporate Debtor can categorically be divided into three parameters; (i) First, was with respect to the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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