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TMI Blog2021 (2) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited [ 2017 (9) TMI 1270 - SUPREME COURT ]. The present application is complete and the Applicant has established its claim which is payable and due by the corporate debtor - Application admitted - moratorium declared. - Company Petition No. IB 2339/ND/2019 - - - Dated:- 5-2-2021 - DR. DEEPTI MUKESH HON BLE MEMBER (JUDICIAL) And MS. SUMITA PURKAYASTHA HON BLE MEMBER (TECHNICAL) FOR THE APPLICANT : MR. DHURABJIT SAIKAI, ADV, MS. MEGHA PUROHIT, ADV. FOR THE RESPONDENT : MR.P.K.SACHDEVA, ADV ORDER PER-DR. DEEPTI MUKESH, MEMBER ( JUDICIAL ) 1. The Present Application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity code ) read with Rules 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), 2016 (for brevity the Rules ) through Mr. Pradeep Kumar (for brevity Applicant ) being the sole proprietor of Pradeep Kumar Co., with a prayer to initiate the Corporate Insolvency process against Apace Builder Contractors Pvt. Ltd. for brevity ( Corporate Debtor ). 2. The Applicant is a sole proprietor of Pradeep Kumar Company, being the proprietorship firm having date of commencement on 03/03/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upply made thereof the corporate debtor has not made any payments. The applicant made numerous verbal communications. However, inspite of all requests of the applicant the corporate debtor neglected to make payments against the amounts due to the applicant. 7. Pursuant to the defaults, the applicant issued a demand notice dated 27.06.2017 under Section 8 of the code calling upon the corporate debtor to pay the total outstanding amount of ₹ 16,72,339/- including interest calculated up to 26.06.2019. The notice was served upon the registered as well as corporate address office of the corporate debtor via speed post. The demand notice was also sent at the registered Email ID, as mentioned in the master data vide email dated 23.07.2019. The copies of proof of delivery and tracking report of email have been annexed. 8. The corporate debtor has not replied to the said demand notice. Consequently, the applicant filed the present application under section 9 of IBC, 2016 and served the copy of this application, which was duly delivered to the Corporate Debtor as per service affidavit. As per Form V, the total debt outstanding is ₹ 16,72,339/- including interest upto 26.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the demand notice and relied upon the judgments of Hon ble Supreme Court in the cases of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited and M/s Innoventive Industries Limited Vs. ICICI Bank Anr. Further stated that in view of the above, it is clear that the dispute if any should be pre- existing and should not be patently feeble legal argument or an assertion of fact unsupported by evidence. c) With respect to issuance of credit notes by the corporate director, the applicant states that allegations made by the corporate debtor are false and frivolous and the corporate debtor has failed to produce evidence to support the said contention. Further also stated that the credit notes issued were for certain goods returned which were not in terms of specifications as stated by the corporate debtor. 11. The applicant submits that in pursuance of the liberty granted by the Tribunal on 21.12.2020 an amended memo of parties was filed vide application on 28.12.2020, and further relying on the judgments of Hon ble NCLAT in Neeta Saha Vs. Ram Niwas Gupta, wherein it was held that the application filed by the sole proprietorship firm under I B code are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication, which is otherwise complete , the adjudicating authority must reject the application under Section 9(5)(2(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility . It is clear that such notice must bring to the notice of operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which required 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. Therefore, in the given facts and circumstances, the present application is complete and the Applicant has established its claim which is payable and due by the corporate debtor. In the light of above facts and records, the present application is admitted. 18. The applicant has named Mr. Arun Chadha , as the Insolvency Resolution Professional, with registra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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