2022 (2) TMI 147 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - discrepancies found in the claim of Appellant/Operational Creditor and objections raised by the Respondent/Corporate Debtor - three invoices and related delivery of goods or dispute of a price - HELD THAT - Regarding Invoice 1 the Respondent's claim is that there are two invoices, one a handwritten one and other the computerized copy, and both state different price rates for the same goods - The relevant invoice is the computerized invoice, which is the same as issued by the Appellant to the Respondent for many other supplies, and the price rate mentioned in the invoice is the rate prevailing on the day the supply was actually made. The Appellant has also said that the issue of short supply raised by the Respondent is basically due to the different weights recorded at different weigh bridges and the Appellant has given due credit for the short supply claimed by the Respondent. Thus the Appellant has given credit for the deficient weight which was claimed by the Respondent. With regard to Invoice 2, the Respondent has disputed the delivery of goods pertaining to the said invoice though the Appellant has claimed that vide mail dated 11.4.2017, the Respondent had confirmed the delivery of goods - Appellant had to submit unimpeachable proof of delivery of goods to establish his case under section 9 of IBC. Such evidence was also necessary since the respondent had disputed delivery of goods in his reply to the demand notice. Therefore, we are inclined to believe the claim of the Respondent that the goods were actually not delivered at the site. Regarding Invoice 3, the Respondent has alleged that it is forged and fabricated and has also disputed the signature on the left bottom corner of the tax invoice which is claimed by the Appellant as evidence of supply of goods to the Respondent - Though the Appellant has claimed that the same lorry carried both Bitumen and Emulsion to the site of the Respondent he has not submitted any proof of the same and moreover, in the absence of any receipt of the delivery of Bitumen at the site of the corporate debtor we are not convinced that the goods (Bitumen) claimed to have been supplied vide Invoice 3 were actually received by the corporate debtor/respondent. The Appellant has not been able to show convincingly that it had actually supplied materials relating to Invoice 2 and invoice 3 as claimed. We also agree with the Respondent that it could raise the dispute regarding non-supply for the first time in its reply to the demand notice under section 8 as it did not have knowledge of the said Invoices 2 and 3 before it received the demand notice. These disputes therefore relate to the dates of purported invoices and in this sense they are legitimate disputes and not sham disputes - the application under Section 9 filed by the Appellant lacked merit and was correctly rejected by the Adjudicating Authority by the Impugned Order. Appeal dismissed.

Summary

Issues:
Discrepancies in claim of Operational Creditor, objections by Corporate Debtor, non-payment of outstanding amount, disputed invoices, non-delivery of goods, disputed rates, forged invoice, lack of proof of delivery.

Detailed Analysis:

1. Discrepancies in Claim and Objections:
The appeal was filed under section 61 of the Insolvency and Bankruptcy Code, 2016, challenging the judgment of the NCLT, Kolkata Bench, which dismissed the section 9 application due to discrepancies in the claim of the Operational Creditor and objections raised by the Corporate Debtor. The Operational Creditor alleged non-payment of the outstanding amount by the Corporate Debtor.

2. Disputed Invoices and Non-Delivery of Goods:
The main issues revolved around three disputed invoices and the delivery of goods. The Corporate Debtor disputed the delivery of goods related to the invoices and raised concerns about the rates charged by the Operational Creditor. The disputes were raised in response to a demand notice, with the Corporate Debtor denying receipt of goods for certain invoices.

3. Arguments and Counterarguments:
The Operational Creditor argued that discrepancies in rates were due to different invoices issued at different stages, with the correct rate mentioned in the final invoice. The Corporate Debtor disputed the delivery of goods for one invoice and requested proof of delivery, which the Operational Creditor failed to provide convincingly.

4. Lack of Proof of Delivery:
Regarding one invoice, the Corporate Debtor's confirmation email was not considered proof of delivery, and the quarterly VAT returns and ledger accounts submitted were deemed insufficient to establish the delivery of goods. The Tribunal emphasized the need for unimpeachable proof of delivery to support the claim under section 9 of the IBC.

5. Decision and Legal Precedent:
The Tribunal found that the Operational Creditor failed to provide convincing evidence of the delivery of goods for the disputed invoices. Citing a legal precedent, the Tribunal highlighted that the IBC cannot be invoked in the presence of a real dispute. As a result, the appeal was dismissed, upholding the decision of the Adjudicating Authority to reject the section 9 application.

6. Conclusion:
The Tribunal concluded that the application lacked merit and upheld the decision of the Adjudicating Authority. No costs were awarded in the judgment. The detailed analysis focused on the lack of conclusive proof of delivery of goods, leading to the dismissal of the appeal based on the existence of legitimate disputes raised by the Corporate Debtor.