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TMI Blog2022 (11) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the Operational Creditor. For the aforesaid amount the Respondent has already settled the claim of Rs. 1,54,21,882 with the Operational Creditor which was the liability as admitted by the Corporate Debtor. The Respondent has also filed an affidavit in respect to settlement of dues with the Operational Creditor - the dispute with respect to the remaining amount is disputed and it is evident from the documents placed on record by the Corporate Debtor that there exists a pre-existing dispute between the parties and it is the mandate of law that if there exists a pre-existing dispute between the parties the Adjudicating Authority must reject the application under section 9(5)(ii)(d). On hearing the arguments of the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93,421/- as on 18.03.2019, plus interest @ 18%. The date of default is stated to be on 31.10.2016. 4. Submissions by the Ld. Counsel appearing on behalf of the Operational Creditor. 4.1. That the Operational Creditor entered into several contracts with Corporate Debtor from time to time to provide security, manpower services, training, technical, housekeeping services along with other services for various projects of Corporate Debtor. 4.2. That the Operational Creditor has carried out its duties timely in terms of the contact, however, a huge amount started accumulating since the year 2013 due to the non-payment/non clearance of the invoices/bills raised by Operational Creditor from time to time. 4.3. That the Corporate Debtor f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Services provided were not satisfactory. On site visit, it was observed that the Security Guards were not found at their respective location and the guards used to sleep in the office hours, further the guards were not medically examined. Further, as per the agreement it was agreed that the Operational Creditor will provide all trained/experienced staff with minimum qualification of matriculate or its equivalent, however, it was observed that security guards were untrained, inexperienced and their qualification was not as agreed by the Operational Creditor. 5.3. That in September, 2016 the service of the Operational Creditor were terminated due to lack of efficiency. The same was communicated to the Operational Creditor vide various e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 of Volume II) and has also crystallized the amount at Rs. 2,39,85,521.35/-, which is unpaid from 2011. Therefore, the argument of the Learned Counsel for the 'Operational Creditor' that the period should be confined only from 2015 to 2017 cannot be sustained. The Tribunal cannot confine to one or other invoice if the Applicant has relied on all the invoices to arrive at the amount of Rs. 2,39,85,521.35/- in the Demand Notice under Section 8. We are of the view that the Tribunal does not have Jurisdiction in these Insolvency Proceedings to cut-short the invoices which would cause recurring dates of cause of action as it is not a suit for recovery. It is clear from the above stated judgment that the Tribunal need not see each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlement of dues with the Operational Creditor 6.5. The dispute with respect to the remaining amount is disputed and it is evident from the documents placed on record by the Corporate Debtor that there exists a pre-existing dispute between the parties and it is the mandate of law that if there exists a pre-existing dispute between the parties the Adjudicating Authority must reject the application under section 9(5)(ii)(d). Reliance can be placed on the landmark judgment of Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Private Limited 2018 1 Supreme Court Cases 353. Para 40 of the judgment which reads as under:- 40. It is clear, therefore, that once the operational creditor has filed an application, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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