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TMI Blog2022 (1) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. On examination of the documents submitted and the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice. Since there was a pre-existing dispute between the parties, there are no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016 - application dismissed. - IB-1356/(ND)/2019 - - - Dated:- 19-1-2022 - P.S.N. Prasad, Member (J) And Rahul Bhatnagar, Member (T) For the Appellant : Bishikh Mohanty and Abhishek Grover, Advocates For the Respondents : Rajesh Gupta and Harpreet Singh, Advocates ORDER P.S.N. Prasad, Member (J) 1. This is an application filed by the Operational Creditor, 'M/s. Bulwark Facilities Management Private Limited, through its Authorized Representative, Mr. Kapil Sawhney, seeking to initiate Corporate Insolvency Resolution Process ( CIRP ) under Section 9 of the Insolvency and Bankruptcy Code 2016 ( the Code') against the Corporate Debtor, 'M/s. Genesis Facilities Management Private Limited' for the alleged default on the part of the Corporate Debtor in clearing the debt of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor submitted that the Operational Creditor and the Corporate Debtor had entered into an MOU/agreement dated 24.07.2015, where under Corporate Debtor had requisitioned/obtained housekeeping services at the said Genesis Mall from the Operational Creditor. In terms of the agreement, the Operational Creditor was to provide housekeeping services at Genesis Mall for and on behalf of the Corporate Debtor in terms of Annexure-1 to the said agreement. In consideration of the housekeeping services to be provided by the Operational Creditor, it was agreed that the Operational Creditor shall raise invoice on the Corporate Debtor as per rate mentioned in Annexure-1 to the agreement with applicable service tax. c. The Corporate Debtor stated in its reply that the Operational Creditor had not provided its services properly to the satisfaction of the Corporate Debtor and the Corporate Debtor had written various mails dated 25.03.2017 and 25.07.2017 to the Operational Creditor with respect to the deficiency in service on the part of the Operational Creditor. The copies of above-mentioned emails were annexed with the reply as Annexure-R-1. d. The Corporate Debtor further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e money paid by the Operational Creditor to M/s. Genesis Infratech Pvt. Ltd. for the allotment of said office space/shop. Accordingly, a said adjustment of an amount of ₹ 23,16,315/- was made and Operational creditor duly acknowledged that a sum of ₹ 23,16,315/- as on date in terms of the adjustment stood paid by the applicant to them. It was further informed that the remaining consideration amount towards the allotment of the said shop/office space would be paid by the Operational Creditor to M/s. Genesis Infratech Pvt. Ltd. in terms of schedule of payment i.e., within 90 days of the allotment of the shop in favor of the applicant. It was further agreed that the possession of allotted shop would be handed over by M/s. Genesis Infratech Pvt. Ltd. to the applicant simultaneously with the receipt of balance sale consideration amount towards the allotted shop/office space. A copy of Allotment letter dated 12.02.2019 addressed by Genesis Infratech Pvt. Ltd. to the Operational Creditor is Annexure R-4 of the Reply. g. That accordingly, in furtherance of aforesaid Allotment letter dated 12.02.2019, M/s. Genesis Infratech Pvt. Ltd. entered into Buyer's Agreement dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count payee cheques amounting to ₹ 23,16,315/-. Pursuant to the Memorandum of Settlement dated 18.12.2019 both the parties made the submission before the Adjudicating Authority regarding the same and the Tribunal recorded the same in order dated 19.12.2019. Further, it was submitted that all the cheques got dishonored and Operational Creditor proceeded separately against the Corporate Debtor under section 138 of N.I. Act. 5. The Ld. Counsel for the Corporate Debtor while arguing the matter submitted that the amount claimed by the Operational Creditor is not only based on wrong, false and concocted statements of accounts but is also wrongly claimed. 6. We have heard the arguments advanced by the Learned Counsels for both the parties and perused the documents filed, the Operational Creditor herein has prayed for the initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for the outstanding debt of ₹ 33,85,622/-. The Statutory Demand Notice dated 08.04.2019 under section 8 of IBC, 2016 has been sent by the Operational Creditor to the Corporate Debtor. No reply to the said Demand Notice was sent by the Corporate Debtor. 7. The contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute between both the parties prior to the issuance of Demand Notice dated 08.04.2019. 10. The Hon'ble Supreme Court In Mobilox Innovations Put. Ltd. Vs. Kirusa Software (P) Limited- , analyzed the meaning of dispute with respect to Operational Creditors and observed: 33. The scheme under Sections 8 and 9 of the Code, appears to he that an operational creditor, as defined, may, on the occurrence of a default (i.e., on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be (Section 8(1)). Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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