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TMI Blog2019 (6) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor . The suit has been filed by the Respondent prior to issuance of Demand Notice u/s 8(1). Whether the suit is maintainable or not, such question cannot be determined by National Company Law Tribunal (NCLT) or by this Appellate Tribunal - the argument that the suit is not maintainable cannot be raised nor to be decided. The application u/s 9 is not maintainable - appeal dismissed. - Company Appeal (AT)(Ins.)No. 319 of 2019 - - - Dated:- 2-5-2019 - SUDHANSU JYOTI MUKHOPADHAYA J. (Chairperson) , A. I. S. CHEEMA J. (Judicial Member) and KANTHI NARAHARI Technical Member For Appellant: Mr. Sudhanshu Batra with Ms. Damayanti, Senior Advocates and Mr. Aditya Mishra, Advocates For Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced on the decision of Hon ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited in civil appeal number 9405 of 2017. Heard learned counsel for Appellant and learned Counsel for Respondent and perused the record. Hon ble Supreme Court in Innoventive Industries Ltd. Vs. ICICI Bank (2018) 1 SCC 407] observed that the moment the Adjudicating Authority finds that there is a pre-existing dispute, the Operational Creditor gets out of clutches of the Court as quoted below:- 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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 Admittedly the suit in question relates to same agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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