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TMI Blog2022 (4) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... m Common Effluent Treatment Plant Private Limited (hereinafter referred to as "Corporate Debtor") under Section 9 of the Insolvency & Bankruptcy Code 2016 (in short, 'IBC, 2016') r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 2. A perusal of Part I of the Application shows that the Petitioner is a Public Limited Company. In relation to the Corporate Debtor, the particulars of the Corporate Debtor are given in Part - II from which it is seen that the date of incorporation of the Corporate Debtor is given as 20.05.2005 and the Nominal Share Capital of the Company is Rs. 3,00,00,000/- and Paid-up Cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2019, 31.05.2019 towards O&M Services and 07.12.2018 towards PMA services. d. Operational Creditor's various reminder letters sent to the Corporate Debtor. e. Demand Notice issued by the Operational Creditor issued on 10.01.2020. 5. The Learned Counsel for the Operational Creditor submitted that the Corporate Debtor approached the Operational Creditor to implement a technology to operate and to achieve Zero Liquid Discharge (ZLD). 6. In pursuance of the same, both the parties entered into a Project Management Agency Agreement (hereinafter referred to as "PMA") dated 22.08.2012. The fee payable to the Operational Creditor was set out in Clause 8.1 of the PMA Agreement. Thereafter, the Corporate Debtor requested the Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es raised by the Operational Creditor for the months of January 2016 to March 2016. 8. It is averred in the application that after considering the Corporate Debtor's financial status the Operational Creditor agreed to extend 25% discount on O&M charges from August 2016 till May 2019. In addition to the above, again on 30.06.2017 the Corporate Debtor had sent a letter to Operational Creditor to provide a further discount of 50% which was rejected by the Operational Creditor. 9. It is submitted that the Operational Creditor had sent a letter on 17.11.2017 requesting the Corporate Debtor to clear the outstanding dues. In response to the said letter on 29.11.2017 it was confirmed that a sum of Rs. 9,82,130 towards PMA charges was remitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of the debt amount which is due and payable to the Operational Creditor and hence prayed for initiation of the Corporate Insolvency Resolution Process against the Corporate Debtor. 12. The Respondent has filed the counter. The Learned Counsel for the Respondent at the outset submits that the present Application is not maintainable in view of the fact that there is a dispute between the parties. 13. The Learned Counsel appearing for the Corporate Debtor submitted that, the Corporate Debtor raised various pre-existing disputes with the Operational Creditor even before the receipt of demand notice. The Operational Creditor had arbitrarily without considering the reduced inflow of effluents has raised invoices and therefore the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor has committed default in the payment of the sum which is due and payable by the Corporate Debtor to the Operational Creditor. This Adjudicating Authority in order to come to the conclusion that the Corporate Debtor has committed default in paying the debt amount which is due to the Operational Creditor, as to the facts of the present case has to examine in detail the clauses contained in the O&M Agreements dated 23.08.2013 entered into between the parties. 18. It is seen that the Corporate Debtor has enclosed all communications which were exchanged between the parties. On the perusal of the said documents, it is sufficiently made clear that the Corporate Debtor has raised a 'dispute' in relation to the delay in procurem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the dispute is not patently feeble legal argument or an assertion of fact unsupported by evidence. 21. Further this Tribunal being an Adjudicating Authority under the IBC, 2016 and the proceedings before this Tribunal being summary in nature, this Tribunal unlike a Civil Court cannot indulge in the luxury of taking evidence and that the debt and default on the part of the Corporate Debtor is required to be proved by the Operational Creditor beyond reasonable doubt. 22. Thus, from the discussions made supra we are of the view that there exists a dispute between the parties and the said dispute required further investigation and hence the Application filed by the Applicant/Operational Creditor under Section 9 of the IBC, 2016 stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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