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2021 (9) TMI 693 - AT - Insolvency and BankruptcyLevy of penalty - Corporate Debtor alleged shortage of supply of Coal and the amounts were never paid - allegations of short supply were strongly denied by the Operational Creditor and no payments made - HELD THAT - On a query from the Bench, Learned Counsel for the Respondent has fairly conceded that the observations made, do touch upon the merits of the case and that he has no objection to the same being expunged. Keeping in view the facts and circumstances of the case and the observation made in these two Paras, relevant paras of the Impugned Order be expunged and the same is ordered. The merits of the matter with respect to any Pre-Existing Dispute or otherwise is not discussed. Appeal disposed off.
Issues:
1. Dismissal of Application under Section 9 of the Insolvency and Bankruptcy Code. 2. Existence of pre-existing dispute between the Operational Creditor and Corporate Debtor. 3. Observations made by the Adjudicating Authority impacting potential Arbitration Proceedings. Issue 1: Dismissal of Application under Section 9 of the Insolvency and Bankruptcy Code: The Appellant, an Operational Creditor, appealed against the Order of the Adjudicating Authority dismissing the Application under Section 9 of the Insolvency and Bankruptcy Code. The dispute arose from an alleged failure to supply coal as per a Purchase Order, leading to a penalty issue. The Adjudicating Authority found a pre-existing dispute between the parties regarding the penalty payment. The Operational Creditor argued that the Corporate Debtor failed to pay the due amount, while the Corporate Debtor disputed the penalty, leading to a deadlock. The Adjudicating Authority emphasized the need for a clear debt existence, default, and absence of pre-existing disputes for admitting a Section 9 Petition. Issue 2: Existence of pre-existing dispute between the Operational Creditor and Corporate Debtor: The dispute revolved around the supply of coal under a Contract Agreement between the parties. The Operational Creditor claimed an outstanding amount, while the Corporate Debtor alleged a shortage of coal supply, resulting in unpaid invoices. The Corporate Debtor requested the Operational Creditor to send a representative for final bill reconciliation, which was not done. The Operational Creditor argued that the Corporate Debtor's failure to finalize the bill prevented the determination of default. Both parties presented conflicting claims regarding the penalty for short supply, indicating a pre-existing dispute, as highlighted by the Adjudicating Authority. Issue 3: Observations made by the Adjudicating Authority impacting potential Arbitration Proceedings: The Adjudicating Authority's observations in the Impugned Order raised concerns about potential Arbitration Proceedings. The Appellant sought the expunging of specific paragraphs touching on the case's merits to avoid interference in future arbitration processes. The Adjudicating Authority agreed to expunge the identified paragraphs to prevent any hindrance to arbitration proceedings. The Appellate Tribunal disposed of the appeal by ordering the deletion of the contentious paragraphs and refrained from delving into the merits of the case or the existence of a pre-existing dispute. In conclusion, the judgment highlighted the importance of resolving disputes and ensuring clarity on debts and defaults before admitting insolvency petitions. The need to address pre-existing disputes, as well as the impact of judicial observations on potential arbitration proceedings, were significant aspects addressed in the detailed analysis of the case.
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