2019 (6) TMI 133

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....lant ('Operational Creditor') against order dated 12th February, 2019 whereby the Adjudicating Authority (National Company Law Tribunal) (in short 'NCLT'), New Delhi, Court No. IV rejected the application filed by the Appellant u/s 9 of the Insolvency & Bankruptcy Code ('I&B' Code), 2016 on the ground of pre-existing dispute. When the matter was taken up on 5th April, 2019, learned counsel for Appellant submitted that Demand Notice u/s 8(1) was issued on 5th October, 2018 and suit was filed subsequently on 16th October, 2018 and, therefore, it cannot be stated to be a pre-existing dispute. Learned counsel for Respondent referred to notice dated 5th October, 2018 and submitted that the said letter is a general notice for arbitration an....

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....e invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing-i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code." The aforesaid observation of the Hon'ble Supreme Court was reiterated by the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited in civil appeal number 9405 of 2017, wherein the Hon'ble Supreme Court also observed:  "51. It is clear, therefore, that once the operational creditor has f....