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TMI Blog2022 (10) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. one lakh on the part of the Corporate Debtor. Whether there is existence of dispute between the parties? - HELD THAT:- As there is nothing on record to suggest that the Corporate Debtor/Appellant raised any such dispute before receipt of invoices or at any period prior to the issue of demand notice, this cannot be held as a case of pre-existing dispute. There is no exchange of correspondence raising any dispute prior to issue of demand notice. The Corporate Debtor/Appellant has defaulted in the payment of operational debt, of an amount exceeding Rs one lakh, which amount had clearly become due and payable, and further in the absence of any pre-existing dispute, there are no error has been committed by the Adjudicating Authority in admitting the application under Section 9 of IBC and initiating CIRP - Appeal is dismissed. - Company Appeal ( AT ) ( Insolvency ) No. 648 of 2022 - - - Dated:- 12-10-2022 - [ Justice Ashok Bhushan ] Chairperson And [ Mr. Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Devvrat , Mr. Anup Kumar, Mr. Gaurav Singh , Advocates For the Respondents : Mr. Shikhil Suri , Komal Gupta , Madhu Suri , Ms. Jyoti Suri , Ms. Niki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming unpaid operational debt of principal sum amounting Rs 19.95 lakhs and Rs 11.53 lakhs respectively alongwith interest. The erstwhile Director of Corporate Debtor/Appellant has denied receipt of both the Demand Notices. As the operational debt remained unpaid inspite of the Demand Notice, the Operational Creditor/Respondent No. 1 filed a Section 9 petition on 18.11.2019 before the Adjudicating Authority claiming a sum of Rs 19.95 lakhs from the Corporate Debtor consisting of principal sum of Rs 11.53 lakhs and interest of Rs. 5.85 lakhs at the rate of 24% per annum. The Adjudicating Authority vide impugned order dated 23.05.2022 came to the conclusion that there being an outstanding operational debt of more than the threshold limit of Rupees one lakh due from the Corporate Debtor at the time of filing the Section 9 petition and the Corporate Debtor having defaulted in making payment of the debt due and further in the absence of any pre-existing dispute relating to the said debt, admitted the Section 9 application filed by Respondent No. 1 and ordered initiation of CIRP. Aggrieved by the above order of the Adjudicating Authority, the erstwhile Director of the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due or by electronic mail service. However, there is no acknowledgement of the receipt of the same by the Corporate Debtor as no attempt was made to effect proper service of the said Demand Notice. 6. Refuting the above submissions, the Learned Counsel for the Respondent No. 1 stated that the operational debt is relatable to the invoices raised against work order of 01.10.2016 for a gross amount of Rs 58.74 lakhs against which the Appellant had only paid Rs. 10 lakhs and Rs. 15 lakhs on 27.04.2017 and 28.04.2017 respectively bringing down the outstanding amount to Rs. 33.74 lakhs. Repeated reminders were sent to the Appellant to clear the outstanding dues and to reconcile discrepancies if any and the Appellant on his own admitted on 10.04.2018 that there is a net outstanding amount of Rs. 33.74 lakhs. Thereafter, the Corporate Debtor again released payments of Rs. 8 lakhs and Rs. 5 lakhs on 24.05.2018 and 28.05.2018 respectively bringing down the outstanding amount to Rs. 19.95 lakhs. It has been further added that the mobilisation advance of Rs 5 lakhs had been received in terms of the contract and has nothing to do with the unpaid operational debt. 7. As the above amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding Rs. 1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act. 11. Let us now see whether the test laid down by Mobilox judgment supra of operational debt exceeding Rs. 1 lakh having become due and payable but not yet paid is applicable in the present case. From material on record as at page 148-149 of Appeal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected the contention of the Corporate Debtor of non-delivery of Demand Notice. Moreover, it has also been observed by the Adjudicating Authority in the impugned order that this fact remained uncontroverted during the hearing. Hence we find no reasons to disagree with the reasoned finding of the Adjudicating Authority in this respect. 16. The Adjudicating Authority in the impugned order has noted that the Corporate Debtor having already admitted vide letter dated 10.04.2018 that an amount of Rs. 33.74 lakh is due and payable was sufficient in itself for admission of the Section 9 petition. The Adjudicating Authority was therefore satisfied in holding that an operational debt was actually in existence and in arriving at this conclusion has not committed any error. 17. Be that as it may, in the interest of justice, we feel that the tenability of the defence raised by the Corporate Debtor that there was no outstanding due also needs to be examined particularly in the light of the undisputed fact that the dues of the First Work Order was entirely discharged and cleared by the Corporate Debtor. In examining the defence raised by the Corporate Debtor/Appellant, we have noted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore judicious approach, we felt that it would be more prudent to rely on the complete set of accounts in terms of invoices raised and payments received for both the work orders i.e.17.10.2015 and 01.10.2016 as detailed out at page 181 of APB as reproduced below: Anindya Infratech Private Limited Invoice No. Date Site Amount 29213 25-Oct-15 Kanpur 570000 30244 14-Nov-15 Kanpur 361733 30245 30-Nov-15 Kanpur 472316 30721 31-Dec-15 Kanpur 944625 31000 31-Jan-16 Kanpur 973690 31414 29-Feb-16 Kanpur 944625 32040 31-Mar-16 Kanpur 871968 32120 30-Apr-16 Kanpur 944625 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 500000 01/10/2016 509591 12/01/2017 400000 16/01/2017 182376 20/01/2017 904000 27/04/2017 1000000 28/04/2017 1500000 24/05/2018 800000 28/05/2018 500000 04/08/2018 800000 14145089 Net Amt Outstanding 1153817 This chart depicted above clearly spells out the net outstanding amount as Rs 11.53 lakhs as on 04.08.2018 and therefore clearly establishes debt above th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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