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TMI Blog2023 (10) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... w Tribunal, New Delhi Bench-VI) in CP (IB) No.596/(ND)/2020. By the impugned order, the Adjudicating Authority has admitted the application under Section 9 of the IBC filed by M/s Rama Tent House-present Respondent No.1 and initiated Corporate Insolvency Resolution Process ("CIRP" in short) of the Corporate Debtor - M/s Unison Hotels Private Limited. Aggrieved by this impugned order, the present appeal has been filed by Shri Devesh Saraf, Suspended Director of the Corporate Debtor. 2. The brief facts of the case which are necessary for deciding this appeal are as outlined below: - * The Corporate Debtor had entered into a business agreement with the Operational Creditor - Respondent No.1 for tent house services to be provided in respect of a hotel managed by the Corporate Debtor. The agreement was for the period 01.09.2015 to 31.08.2017 which was further extended up to 31.08.2018. * The Operational Creditor raised invoices in the name of the Corporate Debtor and had claimed an operational debt of Rs.1,10,05,215/-. Since the amount had purportedly remained unpaid, the Operational Creditor had issued a demand notice under Section 8 of IBC on 08.05.2019 on the Corporate Debtor. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor failed to show the existence of any suit or arbitration which had been filed before the receipt of the demand notice. Further the reply notice of the Corporate Debtor does not make any reference to the emails basis which pre-existing disputes have been allegedly raised. It was also asserted that they had chosen to terminate the contract to which the Corporate Debtor responded on 22.03.2018 by stating that they respect their decision of contract termination and assured to give a payment plan soon without making reference to any dispute or deficiency in service. 5. We have duly considered the arguments advanced by the Learned Counsel for the parties and perused the records carefully. 6. Submission was pressed by the Corporate Debtor that the claim of the Operational Creditor was barred by limitation since the purported invoices relied upon by the Operational Creditor were beyond the period of limitation. It has also been submitted that the Operational Creditor failed to disclose as to which invoice is paid and which are payable. It was also pointed out that the Operational Creditor had claimed operational debt without specifying the date when the debt had become due and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h/April 2017 as placed at page 210-211 of Appeal Paper Book ("APB" in short). We are therefore inclined to agree with the Respondent No. 1 that since the Section 9 petition was filed on 15.02.2020, it fell very much within the limitation period independent of even the acknowledgment of debt in the email of 22.01.2018. 10. We now come to the contention of the Corporate Debtor that the alleged dues of the Operational Creditor were not payable as there existed a dispute with respect to the quality and nature of services offered by the Operational Creditor which had led to loss of customers and consequential damages to the Corporate Debtor. It was also contended that the financial health of the Corporate Debtor was never in question being a well-established and solvent company. Thus, the question of default because of financial incapacity does not arise. Moreover, the Corporate Debtor relied upon bills issued from time to time and placed on record statement of accounts certified by the Chartered Accountant as per which Respondent No.1 was liable to pay Rs.7,71,434/- to the Corporate Debtor. 11. The findings on pre-existing disputes have been recorded in the negative by the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending between the parties. Therefore, 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. 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 above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." (Emphasis Supplied) 13. This brings us to the stand taken by the Appellant that in their email dated 22.03.2018 they had requested for reconciliation of account and this substantiates that they had disputed the outstanding amount. To examine the credulity of their contention, it would be useful at this stage to reproduce the said email which is as follows: - "On 22 March 2018 at 18:00, Jayant Jain sdol@thegrandnewdelhi com> wrote Dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor had claimed an amount of Rs.7,71,434/- as receivable from the Operational Creditor prior to the issue of demand notice. 16. Furthermore, we find that even in their emails raising the issue of snags in the performance of services by the Operational Creditor, we do not find any material which shows that the Corporate Debtor linked the performance issues with the payment of outstanding debts. On the other hand, we notice that the Operational Creditor in their reply to these emails of the Corporate Debtor, consistently and unfailingly raised the issue of outstanding payments. The existence of debt, due and payable, has not been controverted by the Corporate Debtor in the emails exchanged by them with the Operational Creditor. 17. Given this backdrop, we find that the Adjudicating Authority in the present case has duly considered the reply and submissions made by the Corporate Debtor and correctly come to the conclusion that there is no ground to establish any real and substantial pre-existing dispute which can thwart the admission of Section 9 application against the Corporate Debtor. We find no persuasive reasons to be convinced that there was any pre-existing dispute. 18. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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