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TMI Blog2019 (3) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be spurious one or being raised as an afterthought by the corporate debtor. The dispute about the breach of terms of contract is going on since 2014-2015 onwards. In view of the rulings of Apex Court in the case of Mobilox Innovations Private Ltd.[2017 (9) TMI 1270 - SUPREME COURT OF INDIA] this authority is not expected to examine the matter of dispute in detail but only has to see whether the dispute is genuine or not. So long dispute exists, the authority has to reject the application. As found that dispute as raised by the corporate debtor about the operational debt as claimed against them by the operational creditor cannot be said to be imaginary one. It requires detailed enquiry into the matter. Hence, not inclined to admit the Corporate Debtor in Corporate Insolvency Resolution Process as there exists the dispute about the amount claimed. - CP (IB) No. 648/KB/2018 - - - Dated:- 29-1-2019 - SHRI MADAN B. GOSAVI, MEMBER (J) For The Operational Creditor : Shri B.S. Mahajani and C.S. Rohit Kumar Keshri For The Corporate Debtor : Mr Aishwarya Awasthi, Rajashri Banerjee and Rishav Banerjee ORDER 1. M/s. MX Systems International Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t approve the drawings in time. Thereby, the project is delayed. They are entitled to receive a sum of ₹ 11,13,63,937/- from the corporate debtor which the corporate debtor refused to pay. Hence, this application is filed to start CIRP of the corporate debtor. 4. It is stated that before filing this application, they have served demand notice dated 18.01.2018 under section 8 of the I B Code. Notice was received by the Corporate debtor. They replied the notice raising/pointing out false and imaginary dispute about the amount claimed. 5. Notice of this application was served on the corporate debtor. They appeared through duly authorised representative to argue the Manager (Commercial). He filed affidavit-in-reply/defence of the Corporate Debtor. According to him, Mr. Sandip Modi, who has affirmed the petition under section 9 of I B Code, has not been duly authorised to do so. The application being defective not maintainable. He further contended that the operational creditor did not produce on record the affidavit stating that they did not receive any letter from the Corporate Debtor pointing out the dispute is in existence relating to unpaid debt and also did not produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting any default in paying the debt. This application is not maintainable on facts and as well as law. Hence, the same may be dismissed. 8. The Operational Creditor filed rejoinder and pointed out that the technical objections as raised by the corporate debtor about the maintainability of the application cannot be sustained as they have complied with all provisions of law relating to filing of this application. Mr. Sandip Modi was validly authorised to file this application. They brought to notice of this authority the additional facts that one of the directors of the Corporate Debtor gives a submission in newspaper dated 16.01.2017 stating that the Corporate Debtor is going to sell some of their assets. Ld. Counsel for the Operational Creditor submitted that the Corporate Debtor need to be prevented from disposing off the assets by way of order of moratorium or else the operational creditor would suffer huge loss. 9. I have gone through the records and proceeding of the case. I heard the ld. Counsel, Mr. B. S. Mahajani for the Operational Creditor and ld. Counsel, Mr. Rishav Banerjee for the Corporate Debtor at length. Both of them submitted written notes of argument. Both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. In the light of above, I now proceed to examine the facts of the case. It is not in dispute that the Corporate Debtor had given a contract to erect firefighting system to the operational creditor on the basis of purchase order supported by terms of the contract. That purchase order was accepted along with terms of the contract by the Operational Creditor. Hence, both parties are bound by those contracts (in Exhibit 6). According to the operational creditor, as the corporate debtor did not provide the front at the site to execute the job, the project was delayed. Such delay is attributable to the corporate debtor and not to them. They have complied their part of the contract. As against this, the Corporate Debtor contended that the operational creditor was not at all prepared to execute the work as per the terms of the contract. The operational creditor failed in disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of ₹ 45,53,463/- was raised on 12.08.2015. 16. One of the employees of the operational creditor sent e-mail to the corporate debtor reiterating the above point in dispute. That e-mail was replied by the corporate debtor objecting the contentions raised by the operational creditor. It was informed to the operational creditor mentioning that those are the issues outside terms of the contract. Such correspondences raising points against each other were going on for long 2-3 years prior to the demand notice. Lastly, the operational creditor sent demand notice dated 18.01.2018 under section 8 of I B Code. It was replied by the corporate debtor. It is not in dispute that ultimately, the operational creditor did not complete the work of erection of firefighting system. Corporate Debtor assigned that work to other contractor and that got it done. 17. On the background of above facts, the germane issue arises out of the controversy is that, as to who committed the breach of the terms of the contract This dispute cannot be said to be spurious one or being raised as an afterthought by the corporate debtor. The dispute about the breach of terms of contract is going on since 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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