TaxTMI 
TaxTMI 
2019 (3) TMI 1237
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.... The present application is filed under section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 6 of the Insolvency and Bankruptcy Code (Application to Adjudicating Authority) Rules, 2016 by CIL Australia North Pty Limited, (for brevity 'Applicant'), with a prayer to initiate the Corporate Insolvency Resolution Process against M/s Sharp Corp Limited (for brevity 'Corporate Debtor'). 2. The Applicant company CIL Australia North Pty Limited, authorized Mr. Trilok Chand vide affidavit dated 26.11.2018 to initiate CIRP under I & B Code. The applicant is having its office at Level 1, Building 5, 658 Church Street, Richmond VIC 3121, Australia. 3. The Corporate Debtor is a private limited company, company ....
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....the said Contracts. 7. The Applicant has submitted that with regard to the said unpaid amount, invoices dated 31.10.2017 were raised by the applicant on corporate debtor. The applicant further submits that regular follow ups were made through emails, but no payment was ever received. 8. The Applicant served a demand notice, dated 30.10.2018 under section 8 of the Insolvency and Bankruptcy Code, 2016 under 1st settlement agreement, in which total amount of debt claimed is USD 2,304,035.63 and under 2nd settlement agreement, total amount of debt claimed is USD 608,615.08. 9. The Applicant further submitted that the Operational Creditor and the Corporate Debtor arrived at a settlement which was documented in a Settlement Agreement dat....
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....th the schedule agreed between the parties, with the first installment payments under both Settlement Agreements falling due on 1st October 2018. However, the Corporate Debtor has failed to pay the first installment amount of USD 57,526.94 under the 1st Settlement Agreement and the first installment amount of USD 16,805.40 under 2nd Settlement Agreement which payments became due and payable on 1st October, 2018 ("Date of Default"). The Corporate Debtor has till date failed to make any payment whatsoever under the Settlement Agreements. 11. As a consequence of the failure of the Corporate Debtor to make any payment against the outstanding debt under the Settlement Agreements the principal amount of USD 2,290,350.00 i.e. Rs. 16,21,56,780/-....
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....filed on 16.10.2018 much prior to the demand notice sent by the Applicant under Section 8 of the IBC, 2016. 14. It is stated by the Respondent that the notice was issued in the said suit by the Ld. ADJ, Gurugram vide order dated 02.11.2018. Thereafter, two Defendants including the Applicant herein have entered appearance on 29.11.2018 and are actively contending the matter, by filing various applications. 15. It is relevant to mention that the Applicant herein in their Application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 in Civil Suit No. 77 of 2018 in paragraph 2 thereof has stated as follows: "The Applicant/ Original Defendant No. 2 i.e. CIL Australia North Pty Ltd. is entering appear....
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....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 exist in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. In the present case the respondent has raised dispute with sufficient particulars. Besides the case records reveal that there was existence of dispute much prior to the issuance of notice under section 8 of the code. The claim of the dispute suggest the need of elaborate investigation. The moment there is existence of such a pre-existence dispute, the corp....