9911796707
TMI Blog2022 (8) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... is covered by the celebrated decision of the Hon ble Apex Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [ 2017 (9) TMI 1270 - SUPREME COURT ] wherein it was held that So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. Application dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, which is due and payable by the Corporate Debtor. As regards the date of default as averred in Part-IV of the Application that the date of default is from the due date of the invoices till the date of demand notice i.e. 26.09.2019. 6. Part V of the application describes the particulars of Operational Debt, documents, records and evidence of default. Following documents have been attached with the application:- a) Copy of Invoices along with grading reports. b) Ledger Account of the Corporate Debtor in the books of the Operational Creditor, etc., 7. It was contended by the Ld. Counsel for the Operational Creditor that the Operational Creditor has provided the electric material and other related services to the Corporate Debtor in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Since the portion of the work was not completed the testing and commissioning were in abeyance. Hence, the remaining 20% payment was pending from the side of the Corporate Debtor. It was further argued that it is not at all default on the side of the Corporate Debtor, since the alleged sum will become due: for payment only after completion of testing and commissioning. 12. It was further submitted that as per condition No. 5 of the purchase order the Operational Creditor is responsible for getting CEA approval including Genset approval but the applicant failed to obtain the approval and the Corporate Debtor obtained the same with an additional cost of Rs. 50,000/-. 13. It was further submitted that as per condition no. 7 of the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected, but the Operational Creditor failed to get the CEA approval. Left with no other option the Corporate Debtor engaged another contractor M/s. Winpower Engineering to get the CEA approval. 18. It was further submitted that regarding the CENVAT credit, the Operational Creditor has promised to purchase the materials in the name of Corporate Debtor but failed to honour the same and later contended it as impossible to perform. 19. It was further submitted that the deficiencies and shortcomings of the Operational Creditor were intimated to the Operational Creditor on several occasions even in the reply to the demand notice sent by the Operational Creditor. In view of the above, the Corporate Debtor sought to dismiss the application as not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; 23. The above findings bring us to conclude that there is an unsettled pre-existing dispute between the Corporate Debtor and Operational Creditor and this case is covered by the celebrated decision of the Hon'ble Apex Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited wherein it was held as follows "40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
