9911796707
TMI Blog2022 (7) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor did not reply to the demand notice under Section 8 of IBC sent by the Operational Creditor but had admittedly replied earlier notices pointing out the dispute about services rendered by the Operational Creditor, whether it can be held that there is no pre-existing dispute pending in between them. In view of all the evidence and record, it cannot be said that the Corporate Debtor did not bring to the knowledge of the Operational Creditor about the pendency of the dispute prior to filing of this application and even prior to receipt of demand notice under Section 8 of IBC by them - It is seen from the evidence on record that number of times notices were sent upon the Corporate Debtor demanding the outstanding payment by the Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Hundred Thirty-Eight Only). The date of default is not stated in form-5 Part-IV as required under Rule 6(1) of the Insolvency and Bankruptcy (Adjudicating Authority) Rules 2016. 2. The following facts are not in dispute: (i). The Corporate Debtor was awarded with the contracts by Bihar State Electronics Development Corporation Ltd. (for short BSEDCL ) to provide Wi-Fi connections in 8 Engineering Colleges owned by the State Government. Later on, the contract was revised to provide Wi-Fi services only in 7 colleges. The Operational Creditor was the sub-contractor of the Corporate Debtor. (ii). The Operational Creditor stated that as per the memorandum of understanding dated 29.03.2014, it has completed the job of setting up W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of outstanding amount as said above. 3. The Corporate Debtor is served with the notice of this application. It had appeared through its Managing Director, Mr. Kshitijbhai Prafulbhai Desai. He has filed affidavit in reply and contested the claim. 4. It is contended that there is a dispute pending about the services rendered by the Operational Creditor. It is pending since 2016. As per Clause 6 of MoU dated 29.03.2014, it was the duty of the Corporate Debtor to ensure quality of service. Since the Operational Creditor set up Wi-Fi service of inferior quality, the Corporate Debtor is put to great loss. It was also informed to the Operational Creditor to get test report from the concerned colleges and then claim the payment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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-section (2) is incomplete; (b) there has been [payment] of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. (e) any disciplinary proceeding is pending against any proposed resolution professional. (Rest provisions are not required) Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. It has further held that: 45. Going by the aforesaid test of existence of a dispute , it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he number of e-mails it has sent to the Operational Creditor, those are dated 19.12.2016 (at page No. 25), 26.12.2016(at page No. 27), 13.12.2016 (at page No. 33). 12. It is also not in dispute that two notices reply dated 06.07.2017 (Annexure H) and 23.11.2018 (Annexure K), the Corporate Debtor had brought to the notice of the Operational Creditor that there is a dispute pending in between them about the services rendered by the Operational Creditor and about the balance payment. In view of all the evidence and record, it cannot be said that the Corporate Debtor did not bring to the knowledge of the Operational Creditor about the pendency of the dispute prior to filing of this application and even prior to receipt of demand notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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