2019 (8) TMI 1730

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.... Corporate Insolvency Resolution Process (CIRP) against DBM Geotechnics and Constructions Private Limited (hereinafter called "Corporate Debtor") alleging that the Corporate Debtor committed default on 02.03.2015 in making payment to the extent of Rs. 51,72,914/- including interest @ 24% p.a.by invoking the provisions of Section 9 of Insolvency and Bankruptcy Code (hereinafter called "Code") read with Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. FACTS OF THE CASE 2. According to the Petition filed by the Petitioner 4 work orders were issued by the Corporate Debtor upon Petitioner for hiring 70 Mt Zoomilion Crawler Crane (herein referred to as "the said Crane") on 4 March 2013,16 December 2013,....

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....of the said Petitioner was only released 6 months later 04.02.2015. The Petitioner therefore submits that he entitled to claim Rs. 18,87,648/- as hiring charge along with the aforementioned outstanding dues. 6. It is the case of the Petitioner that the Corporate Debtor vide his letter dated 27.11.2014 confirmed the debt owed by him. Furthermore, it is also argued that ledged statements showing TDS deducted is also a clear admission of liability. Therefore, according to the Petitioner, the total amount owed by the Corporate Debtor is Rs. 51,72,914/-. 7. The Corporate Debtor points out that while all of this was happening Contract awarded by the Kandla Port Trust (Principal Employer) to the Corporate Debtor was terminated. Since, the Co....

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....id demand notice on 26.12.2017. Therefore, this petition was filed on 17.05.2018. 12. The Corporate Debtor has reiterated the reply filed by the Corporate Debtor, dated 26.12.2017 to the Demand Notice. Following are the defense is taken by the Respondents, wherein the only tenable defense taken by them is with regards to a Pre-existing Dispute between the parties. ORDER 13. However, before getting into any other reasoning, it is important that we deal with this preliminary objection raised by the Corporate Debtor. It is argued by the Corporate Debtor that a Commercial Suit was filed by the Corporate Debtor on 27.09.2017, before issuance of a fresh demand notice under the Code on the Corporate Debtor on 15 December 2017 [Refer Exhib....

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....ted by evidence as held by the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited. 16. Relevant portion of Paragraph 40 of the Hon'ble Supreme Court Judgement in the case of - Mobilox Innovations Private Limited vs. Kirusa Software Private Limited is reproduced as follows:- "It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the 86 adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a....