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TMI Blog2021 (10) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority the Corporate Debtor has stated 'payable when able' being his payment condition. The argument of the Ld. Counsel of Respondent No. 1 is convincing that this alleged dispute has been raised at this late stage only after the Operational Creditor started asking for his pending payments to show that a pre-existing dispute was present even though it is a spurious dispute, to avoid action under IBC. Thus we find that a prima facie case doesn't exist in favour of the Appellant. Both the parties are agreeable for early hearing and finalization of the appeal case on merits. Hence, no irreparable harm will be caused to the Corporate Debtor if he is not granted stay at this stage. Therefore, there are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be subject to further orders passed by the NCLAT while considering the application for interim order. The appellant is at liberty to inform the other side about the preponement of the date before the NCLAT. Copy of this order be sent by the registry to NCLAT through e-mail within 24 hours. In compliance, the matter was taken up on 7.9.2021 when the Learned Counsel for R-I sought one week's time to file reply. The request was granted. A Status Report has been filed by the Interim Resolution Professional (Respondent No. 2) vide Diary No. 46484 dated 6.9.2021, which was taken on record and duly noted. The IRP was directed on 7.9.2021 not to take any steps in CIRP till the next date of hearing i.e. 24.9.2021 of IA No. 1641/2021. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore he could pass the pending invoices for payment. This amounts to pre-existing dispute regarding the pending invoices, and hence there is no prima facie case in favour of the Appellant. 5. The Learned Counsel for Respondent No. 1 has claimed that invoices raised by the Operational Creditor were regularly paid by the Corporate Debtor, and only invoices from February, 2018 till June, 2019 remained unpaid because the Corporate Debtor did not have requisite liquid cash and he relied on the policy of payable when able , meaning thereby that he would pay when he is able to pay. He has claimed that while reconciliation is being sought by the Corporate Debtor, there was no communication of any deficiency in quality or supply of services by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software (P) Ltd. (Civil Appeal No. 9405 of 2017 decided on September 21, 2017, cited in (2018) 1 Supreme Court Cases 353) in support of their respective contentions. 7. As submitted by the Ld. Counsel for Appellant, the Corporate Debtor made multiple requests for reconciliation of invoices by the Corporate Debtor on many occasions. On the other hand, the Operational Creditor claims to have submitted various documents which are proof of the work being completed pertaining to the unpaid invoices. Additionally, the status report submitted by the IRP shows that there was non-cooperation on the part of the Appellant in handing over the charge of the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel of Respondent No. 1 that this alleged dispute has been raised at this late stage only after the Operational Creditor started asking for his pending payments to show that a pre-existing dispute was present even though it is a spurious dispute, to avoid action under IBC. Thus we find that a prima facie case doesn't exist in favour of the Appellant. 9. We have noted Hon'ble Apex Court has held in Mobilox Innovations Judgment (supra) the ratio that if there is a pre-existing dispute that is not false or spurious, then the application u/s. 9 has to be rejected without examining the merits of the dispute. We feel that the applicability of this judgment will be more relevant at the final hearing of the appeal. 10. We were ready ..... X X X X Extracts X X X X X X X X Extracts X X X X
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