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TMI Blog2022 (7) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to the claim of Operational Debt herein. Whether the Operational Creditor tried to initiate the CIRP of the Corporate Debtor fraudulently? - HELD THAT:- The documents on which Corporate Debtor relying on may be relevant to establish its defence of a pre-existing dispute but only because Operational Creditor did not produce that letter is not a sufficient ground to hold that the Operational Creditor initiated CIRP fraudulently. In order to hold that the CIRP is fraudulently initiated there requires substantial evidence to establish that the Operational Creditor had filed out and out false claim against the Corporate Debtor. Such facts are not available on record in this case. Hence, it is held that it was not fraudulently initiation of CIRP by the Operational Creditor - the application filed by the Corporate Debtor is rejected. Application dismissed. - CP (IB) No. 485 of 2019 and I.A. No. 805 of 2019 - - - Dated:- 4-7-2022 - M. B. Gosavi , Member ( J ) And Kaushalendra Kumar Singh , Member ( T ) For the Appellant : Dev Diwakar Patel , Advocate For the Respondents : Jay Kansara and Alisha Mehta , Advocates ORDER M. B. Gosavi , Member ( J ) 1. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication it has paid to the Operational Creditor the sum of Rs. 11,00,000/- after reconciling its own accounts (it is contended by way of supplementary affidavit). As far as mobilization of the Rig at work place and its demobilization charges are concerned, there is serious dispute still pending in between them. The Operational Creditor suppressed some vital documents relating to pre-existing dispute. Hence, it has filed an application bearing IA No. 805 of 2020 under Section 65 of the IBC, 2016 to take action against the Operational Creditor for fraudulent initiation of the CIRP. According to the Corporate Debtor, the Operational Creditor suppressed certain material facts. It is prayed that application is not maintainable. It may be rejected and action be initiated against the Operational Creditor for false claim. 6. The Operational Creditor filed a reply on IA No. 805 of 2020. It has been contended that dispute as shown by the Corporate Debtor is frivolous. The documents which are now produced along with the application are not relevant to decide the main application. Allegations of fraudulent intention for initiating the CIRP are false. They are made to prejudice to the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The 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. 10. Keeping in view of the aforesaid observations, the above provisions of law and pronouncement relating thereto, we proceed to examine facts of this case. 11. We make it clear that our finding on the controversy in between the parties that whether there is pre-existing dispute pending relating to Operational Debt, it is not necessary for us to look into details of the accounts produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is a pre-existing dispute pending in between the Operational Creditor and the Corporate Debtor relating to the claim of Operational Debt herein. We answer the question in the affirmative. 15. We noted the fact that Corporate Debtor paid certain sum of money even prior to filing of this application and even during pendency of this application for admission. We accept the Corporate Debtor explanation that they pay the amount as per their account and they are not liable to paid disputed amount. Since there is pre-existing dispute, this application under Section 9 of the IBC, 2016 is not maintainable. 16. This takes us to consider whether can we hold that the Operational Creditor tried to initiate the CIRP of the Corporate Debtor fraudulently? 17. Learned Counsel for the Corporate Debtor submitted that the Operational Creditor while filing this application suppressed two vital documents dated 17.11.2018 and the reply notice sent by the Corporate Debtor. As far as reply of notice is concerned, there is enough material on record to show that at earlier the Corporate Debtor itself did not have evidence to know whether the reply was received by the Operational Creditor? ..... X X X X Extracts X X X X X X X X Extracts X X X X
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