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TMI Blog2022 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... - In view of the fact that there is a pre-existing dispute with respect to the goods returned by the OC to the CD, the application for initiating Corporate Insolvency Resolution Process against the CD is not maintainable and is liable to be dismissed. Application dismissed. - IB-3003/ND/2019 - - - Dated:- 20-1-2022 - Abni Ranjan Kumar Sinha, Member (J) And Avinash K. Srivastava, Member (T) For the Appellant : Bindu Bas, Advocate For the Respondents : Mudit Sharma and Parvez Khan, Advocates ORDER Avinash K. Srivastava, Member (T) 1. This is CP/IB 3003 (ND) 2019 RBA Systems Pvt. Ltd. Vs. Optiemus Infracom Ltd. 2. The present petition has been filed by RBA Systems Private Limited (henceforth Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation to purchase the mobile handsets as (DoA) goods as the mobiles sold under the brand name HTC were withdrawn from the market as also from the authorised dealers. The CD was authorised distributor of HTC mobiles and thus was under an absolute obligation to purchase the 73 products. There is no dispute between the parties contemplated under section 5(6) of IBC or otherwise as the CD duly admitted its obligation to pay the purchase price in terms of invoice dated 17.12.2018. 5. Mron International Pvt. Ltd. had assigned its business to the OC under which agreement the 60 mobile handsets were duly purchased by the OC from Mron International Pvt. Ltd. It is thus inconsequential that out of the 73 products, 60 were originally invoiced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to return of mobile handsets which are claimed to be dead on arrival. The alleged claim of return of goods does not constitute a debt. Further existence of dispute is intrinsic to the aforesaid factum and this proves that the dispute is existing under Section 5(6) of the IBC. The CD forwarded the list of handsets to HTC Company including the handsets forming part of the invoice dated 17.12.2018. However, HTC Company vide its email dated 22.02.2019 rejected all claims for DoA under clause 6.5 of agreement between the HTC and CD. Thus, pre-existing dispute between the parties is inherent and the said dispute is prior to sending of notice under Section 8 of IBC. Large number of mobile handsets (60 out of total 73) allegedly returned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sold by CD to the OC during the period February 2017 to May 2017 and returned beyond the mandatory period of 12 months. Hence the claim for the same was rejected by the HTC Company and question of any debt qua the said products does not arise at all. 11. The applicant has filed rejoinder in which he has stated that respondent paid only ₹ 5,17,861/- as against the total purchase of ₹ 11,97,451/-. There is no dispute between the parties contemplated by Section 5(6) of IBC as the (CD) duly admitted its obligation to pay the purchase price in terms of invoice dated 17.12.2018. It is inconsequential that out of the 73 mobile handsets, 60 numbers were invoiced by CD in favour of Mron International Pvt. Ltd. as Mron international ..... X X X X Extracts X X X X X X X X Extracts X X X X
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