AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 681
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..... Jai Balaji Industries Ltd. 2. The following facts are not in dispute- (i) The Operational Creditor sold and supplied to the Corporate Debtor certain raw materials for their new steel mill project at Durgapur plant during the year 2007 to 2013. The part of price of the materials worth Rs. 2,25,90,062/- has not been paid by the Corporate Debtor. Hence, in the year 2016, the Operational Creditor had filed a petition for winding up of the Corporate Debtor company in the Hon'ble High Court at Calcutta bearing no.667/2016. However, that petition was rejected by the Hon'ble High Court for the reasons that the Corporate Debtor company had referred to BIFR on 19.08.2015. Hence, the petition not being maintainable stands dismissed under ....
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....he Appellate Authority. While dismissing the appeal, it is observed that, "In view of the facts that the petition was filed under sections 433, 434 and 439 of the Companies Act, 1956 which is held to be not maintainable by the Tribunal, we hold that the appeal under section 61 of the I&B Code is not maintainable". 5. Thereafter on 04.11.2017, the Operational Creditor gave notice under section 8 of I&B Code to the Corporate Debtor calling upon them to pay the due debt of Rs. 2,25,90,062/- along with the interest. Notice was received by the Corporate Debtor. The Corporate Debtor vide letter dated 15.11.2017 replied to the notice stating that the company has filed Money Suit bearing no.5 of 2017 in the Court of Learned Civil Judge (Senior Div....
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....ency of suit in between the parties creates the bar for this Adjudicating Authority admitting the CIRP against the Corporate Debtor. More particularly when the suit was filed prior to the demand notice under section 8 of I&B code but after the culmination of earlier proceedings in between the parties. 9. The Ld. Counsel for the Operational Creditor submitted that the Operational Creditor claimed recovery of debt way back in the year 2016. When they filed first petition against the Corporate Debtor for their winding up (667 of 2016), it was dismissed on technical ground. Then another petition is filed before this authority bearing no.150/2017. It was also dismissed on technical ground because it was filed without giving notice to the Corpor....
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....in March, 2017 itself, they have filed Money Suit raising dispute about the debt in the Civil Court, Saraikela. Ld. Sr. Counsel submitted that since the suit is already filed raising dispute about the debt, this petition is not maintainable at all. Ld. Sr. Counsel also submitted that in that suit, various contentions about the late supply of raw materials by the Operational Creditor are being raised and they are to be investigated by the Civil court. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Ltd. -vs- Kirusa Software Private Ltd. (2018) 1 supreme Court Cases 353 has held that the Adjudicating Authority has to see whether there is a plausible contention which requires further investigation of the dispute and it....
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....ut the debt claim but have also pointed out that the suit is pending in between them. The amended provision of section 8(2)(a) of the I&B Code requires the Corporate Debtor either to show the existence of dispute or to record the pendency of the suit. In this case, the Corporate Debtor pointed out the pendency of the suit. Hence, I am unable to accept the submissions of the Ld. Counsel for the Operational Creditor that the Corporate Debtor ought to have raised such dispute or filed suit at the earlier point of time, i.e. when the first proceeding of winding up was filed by them in the Hon'ble High Court. I hold that it cannot be said that it was necessary for the Corporate Debtor to raise the dispute at earlier point of time only and no....