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Judgment
Ld. Counsel for the Appellant submitted that the Ld. Adjudicating Authority has erroneously declined to admit the Application filed by the Appellant under Section 9 of the IBC holding that refund of advance amount for services not performed is not an Operational Debt. It is submitted that the Respondent has committed the breach of contract, the definition of claim is broad which includes right to payment for breach of contract under any law.
In definition of Operational Debt under Section 5 (21) of the IBC, the words claim in respect of is significant. The claim of advance payment for any unsupplied service is covered within the scope of Operational Debt under Section 5(21) of the IBC.
Ld. Counsel for the Appellant drew our attention towards some Judgments of Ld. Adjudicating Authority and this Appellate Tribunal in the case of Joseph Jayananda vs Navalmar Uk Ltd & Anr '2021 SCC Online NCLAT 116'.
We have considered the submission, in the case of Overseas Infrastructure Alliance (India) Pvt. Ltd. Vs. Kay Bouvet Engineering Ltd. 'CA (AT) (Ins) No. 582 of 2018' this Tribunal has taken a view that refund of advance made by the Operational Creditor to the Corporate Debtor for providing services or supply of goods is Operational Debt, however, this decision is challenged before the Hon'ble Supreme Court and the matter is still pending. This Tribunal in another two Judgments in the case of Smt. Andal Bonumalla Vs. Tomato Trading LLP. and Roma Infrastructure India Pvt. Ltd. has taken a contradictory view that refund of advance payment for supply of goods cannot be treated as an Operational Debt. In such a situation, we admit the Appeal for hearing.
Issue notice to the Respondent by speed post. Requisites alongwith process fee, be filed, if not filed within two days. If the Appellant provides the email address to the Respondent. Let notice be also issued through email.
Ld. Counsel for the Respondent may file Reply Affidavit within two weeks. Rejoinder, if any, may be filed within one week thereafter.
Let the matter be fixed 'For Admission (After Notice)' on 22nd December, 2021.