TaxTMI 
TaxTMI 
2021 (5) TMI 647
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....lia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Billion Smiles Hospitality Private Limited on the ground that it has committed default for a total amount of Rs. 22,39,927.43/- (Rupees Twenty-Two Lakhs Thirty-Nine Thousand Nine Hundred Twenty Seven only). 2. Brief facts of the case, as mentioned in the Petition, are as follows: (1) M/s. K.K. Ropeways Limited (herein after referred to as 'Petitioner/Operational Creditor') was incorporated under the Companies Act, 1956 bearing the CIN: U35202HP1992PLC012339 and having its Registered Office situated at Jabli, Kasauli, Solan, Himachal Pradesh. Its Authorised Capital is Rs. 20,00,000/- and Paid-up Capital is Rs. 10,00,190/-. The Compan....
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.... before the 10th working day of each calendar month in advance in terms of Clause 2.1 and 2.4 of the Agreement. Further, in terms of Clause 5.4 of the said Agreement, the Corporate Debtor was obligated to pay charges of water and electricity within 10 days of receipt of bill from the Operational Creditor. Further, the Corporate Debtor was obligated to pay CAM charges of Rs. 39,375/- per month with effect from the opening of the food counter. (4) It is alleged that the Corporate Debtor since the inception of the Agreement used to commit default in payment of charges and failed to honour its commitment from the beginning. On 20.06.2017, the Operational Creditor received a letter from the Corporate Debtor stating that they were desiro....
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....reiterating various averments made in the Application, as briefly stated supra, has further submitted that since CD has committed default of awarded amount in question, it is a fit case to be admitted. He has relied upon the Judgment rendered by Hon'ble Supreme Court in K. Kishan Vs. Vijay Nirman Company Private Limited (2018) 17 SCC 662. 5. Shri Rohan Kothari, learned Counsel for the Respondent, has filed Objections dated 17.04.2021 by inter alia contending as follows: (1) The present Petition is wholly misconceived, not maintainable in law or on facts, and is liable to be dismissed in limine. The alleged operational debt claimed herein is not an undisputed or admitted liability, and hence this Petition ought not to be admi....
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....tice issued by the Petitioner to the Respondent under Rule 5 of the IBC Rules, 2016. The Petitioner, in its demand notice dated 21.02.2019, has alleged that the total amount of debt (or amount claimed to be in 'default') is Rs. 22,39,927.43/-. However, the total amount of debt claimed under Part IV of the present Petition is Rs. 23,02,523/-. A further discrepancy is present in the Record of Default with the Information Utility produced by the Petitioner along with Affidavit dated 09.03.2021. In this record of Default, the amount of default appearing due is Rs. 28,75,314.58/-. The discrepancies in the amounts claimed by the Petitioner show that the Demand Notice invoking the provisions of the Code is defective, as is the present Peti....
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.... which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing so, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other Courts, Tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of Corporate Debtor. The nexus with the insolvency of the Debtor must exist." Therefore, the Petitioner, invoking of provisions of the Code for implementation of Award and to recover awarded amount is against object of the Code. The Petitioner has not furnished any data prima facie showing that the Respondent has become insolvent, so as to get defence/response from the Respondent. 7. As stated supra, agg....
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....perational Creditors are concerned, to put the insolvency process against Corporate Debtor only in clear cases where a real dispute between the parties to debt owed does not exist.. Further filing of S. 34 of Act against an arbitral award shows that a pre-existing dispute which culminates at the first stage of proceedings in an award, continues even after the award at least till the final adjudicatory process U/s 34 & 37 of Act has taken place. Therefore, the operational debt in question deemed to be a dispute, as the Respondent stated to have filed Appeal against the Award in question, as detailed supra. Though material papers with regard to filing of Appeal are not furnished due to Covid situation, we took into consideration of the statem....