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TMI Blog2021 (2) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... to admit the Application. Instead, the Adjudicating Authority proceeded to make out a case for the Respondent-Corporate Debtor on the premise that the Appellant-Operational Creditor has not invoked other remedies available under law. We cannot understand as to how the availability of alternate remedy would render the debt and default disputed. In absence of pre-existing dispute having been raised by the Corporate Debtor or it being demonstrated that a suit or arbitration was pending in respect of the operational debt, in respect whereof Corporate Debtor was alleged to have committed default, the Adjudicating Authority would not be justified in drawing a conclusion in respect of there being dispute as regards debt and default merely on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be achieved through CIRP process. The Adjudicating Authority is directed to pass an order of admission in respect of the Application filed by the Appellant-Operational Creditor under Section 9 of the I B Code within two weeks of communication of this order - appeal allowed - decided in favor of appellant. - Comp. App. (AT) (Insolvency) No. 1094 of 2020 - - - Dated:- 22-2-2021 - [Justice Bansi Lal Bhat] Acting Chairperson And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellants : Mr. Gaurav Mitra, Mr. Y. P. Dandiwala, Ms. Khooshnum R. Daviervala, Ms. Yazdi Jijina and Mr. Saswat Pattnaik, Advocates ORDER ( Through Virtual Mode ) Despite awaiting appearance of Respondent, nobody has turned up to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the Adjudicating Authority has only two options, either to admit Application or to reject the same. No third option or course is postulated by law. 4. In the instant case, Mr. Gaurav Mitra, Advocate representing the Appellant Operational Creditor has, while taking us through the impugned order, invited our attention to the fact that the Adjudicating Authority has taken note of the fact that the Respondent Corporate Debtor has not responded to the Demand Notice dated 18th December, 2018 demanding the outstanding amount in respect of the four invoices noticed in paragraph-5 of the impugned order. Mr. Mitra further invited our attention to paragraph-10 of the impugned order, where the Adjudicating Authority has observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, notwithstanding the fact that such Agreement provided for reference of a dispute arising between the parties in relation to a claim through arbitration. Even otherwise, Section 238 of the I B Code, which has an overriding effect over the existing laws or any other law or contract, would not admit of the alternative remedy being a disabling provision for Operational Creditor to seek resolution of a dispute in regard to operational debt claimed against the Corporate Debtor by triggering the Corporate Insolvency Resolution Process. 5. Our attention has also been invited to some observations made by the Adjudicating Authority in paragraph 10, which reads as under: - 10. . Therefore, the Respondent Company prima facie appears to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority clearly landed in error by observing that the course adopted by it was warranted on the principle of ease of doing business, ignoring the fact that such course was not available to it, ease of doing business only being an objective of the legislation viz. I B Code along with other objectives specified in the preamble, which are sought to be achieved through CIRP process. 8. For the aforesaid reasons, we are unable to persuade ourselves to go along and support the impugned order. The Appeal is allowed and impugned order is set aside. The Adjudicating Authority is directed to pass an order of admission in respect of the Application filed by the Appellant-Operational Creditor under Section 9 of the I B Code within two weeks of commu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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