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Judgment
Heard the Ld. Counsel for the Appellant. This appeal has been filed against the order dated 23.11.2023 by which Section 9 application filed by the Appellant has been dismissed on the ground of pre-existing dispute.
Adjudicating Authority in paragraph 7 extracted the pre-existing dispute between the parties which paragraph 7 is as follows:
On perusal of the records, it is observed that the Corporate Debtor in its reply has placed on record the copy of police complaints against the Petitioner which was made prior to issue of demand notice. Relevant extract of the translated copy of the said complaint is as under: -
On 12/10/2017, the owner of Royal Manpower Services along with 25-30 persons came and stopped the function of my company. The contractor of Royal Manpower company supply manpower to my company.
Due to bad services, the management of my company has given the contract to CD Manpower. This contract is effected from 01/09/2017. There was no work of Royal Manpower in this company. And on 12/10/2017, came in the premises of my company and without any reason stopped work and has taken law in their hands, the police officer came and settled the matter and started the work. They threatened to disconnect the electricity of the company and by threatening the labours separated from the workplace and said if anyone has done the work it will not be good.
On happening of this incident all workers of my company are mentally upset. Royal Manpower Services has not deposited by deducting from the worker - PF and ESI contribution of the workers. Due to the reason, I gave my contract to other contractor. Owing to this they messed up so and created a panic by coming with 25-30 persons in the complex of company. So, it is requested that this type of incident will not occur in future and we can do the work easily and peacefully in your jurisdiction. Names of some persons of Royal Manpower are following who came inside the company premises and to execute the incident. Yogesh Huda, Surendra Huda, Anis, Rohit, Mohit, Sonu, Rahu, Basu and others whose names I don't know. So, it is requested that this type of incident won't be repeated in future and give us police protection so that we can do our work smoothly. Our talk kept going collectively so far but now we want legal action”.
The Ld. Counsel for the Appellant submits that the dispute which was noticed in paragraph 7 was resolved and the corporate debtor agreed to make the payment which was not made. He submits that this was not a case of any pre-existing dispute and even the complaint is of 12.10.2017 whereas the claim was of July and August, 2017.
We have considered the submissions of the Counsel for the Appellant and perused the record.
What has been indicated by the Adjudicating Authority in paragraph 7 clearly indicates that dispute existed in October, 2017 and the police complaint was filed on 12.10.2017 by the corporate debtor against the operational creditor. Appellant itself has brought the detailed papers of the police complaint in the appeal at pg. 74. We have looked into the page 74 of the appeal which indicate a report submitted by ASI on 11.11.2017 on the complaint which clearly indicate that there is dispute pertaining to money transaction. The report of the ASI which has been brought on the record itself indicate the dispute was there with regard to payment of dues hence, the pre-existing dispute is proved from the materials which have been brought on the record by the Appellant himself. Further, the demand notice was issued by the operational creditor to the corporate debtor which was replied vide letter dated 15.06.2018. In the reply the demand notice the claim was refuted and the reasons given for refuting the claims which reply to demand notice has been brought on record at pg. 202. A perusal of the reply to demand notice indicates that dispute existed between the parties. Hence, we are of the view that the Adjudicating Authority did not commit an error rejecting the application on the ground of pre-existing dispute. The Appeal is dismissed.