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TMI Blog2017 (7) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... er was part heard, the petitioner's counsel placed on record copy of Form A of the Registrar of Firms containing the names of both the partners and also Form B issued by the Registrar of Firms, Delhi showing the applicant firm having been registered on 23.03.2015. Another set of these Forms A and B have also been attached along with the index of the documents produced on 19.05.2017 for which the matter was fixed. The registered office of the respondent company is at Gurgaon and, therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The Corporate Debtor was incorporated under the Companies Act on 11.12.2002. The petitioner has also provided the particulars of the issued and paid up share capital of the respondent. 4. According to the petitioner, the respondent/Corporate Debtor purchased huge quantity of fabric from the petitioner between 31.10.2015 to 24.01.2017 for an amount of Rs. 1,47,67,553/-. The Corporate Debtor has defaulted in making payment towards 72 bills for an amount of Rs. 84,27,531/-, the balance of Rs. 63,40,022/- having been adjusted by the Operational Creditor on account of payments received from the Corporate Debtor and purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... response to the petition along with documents. It was also observed that the written communication filed by the proposed insolvency resolution professional in Form No.2 was incomplete. The matter was thus adjourned to 17.05.2015 and the petitioner was directed to remove the aforesaid defect within one week 9. The perusal of record shows that on 15.05.2017, the petitioner/operational creditor filed fresh communication in Form No.2 from Ms. Kiran Sharma, Insolvency Resolution Professional registered with the IBBI bearing No.IBBI/IPA-003/IP-00109/2016-2017/1784. which is found to be in order. Advance copy of this communication was admittedly supplied to the learned counsel for the respondent 10. I have heard learned counsel for the parties and have carefully gone through the record with their able assistance. 11. Learned counsel for the petitioner contended that the respondent/corporate debtor had received the demand notice on 13.04.2017, but the reply dated 24.04.2017 was despatched only on 26.04.2017 i.e. after the expiry of 10 days period provided in sub-section (2) of Section 8 of the Code and therefore, the respondent cannot be said to have validly raised the dispute as contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against the proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority." The question that requires discussion in the instant case pertains to the issue raised in terms of clause (d) of sub-section 5(i)and (ii) of section 9 of the Code, as enumerated above. 14. The information utility has not yet been constituted and the point for determination is whether the receipt of reply by the petitioner from the respondent/corporate debtor to the demand notice, would be considered sufficient to say that the operational creditor duly received the notice of dispute which would result in rejection of the application. 15. The term 'dispute' is defined in sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016-2017 which are attached at Annexure E (Colly) with the counter affidavit. Out of these, the first is debit note No.4586, dated 26.04.2016 for Rs. 7,30,000/- being on account of fabric rejected and the other is being at Sr.No.4629, dated 30.06.2016 for an amount of Rs. 6,82,500/- on account of fabric being rejected. For the same reason, the debit note No.4636 dated 08.07.2016 is issued for an amount of Rs. 7,19,500/-. There are two more such debit notes of the financial year 2016-2017, which are not being considered for determining existence of the dispute, because debit notes bearing No.4615, dated 13.06.2016 for an amount of Rs. 1,60,763/- shows that it has been issued on account of bad quality of the goods and at the same time this debit note refers to three of the bills/invoices to which it relates. The other is debit note bearing No.4686, dated 10.08.2016 for an amount of Rs. 8,906/- seemingly on account of shortage of the supply. 19. The respondent/corporate debtor has also attached about 36 copies of the debit notes in the name of Ajay & Co., the promoter of which is the real brother of Tarish Sahni, partner of the petitioner firm and the husband of Ritu Sahni, the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars of the bills, to which these relate nor these are signed by any authorised representative of the petitioner and thus these entries and documents should be out-rightly rejected. The learned counsel would further submit that the debit note at page 23 of the objection petition filed by the respondent bears Sr.No.4427, dated 31.03.2016 and the disputed debit notes bear serial nos.4547 and 4548 of the same date, there being difference of more than 100 in the serial numbers, which is highly an improbable version. 23. To further support the contention of the petitioner, learned counsel relies upon the documents filed on 19.05.2017,which are the purchase orders of fabrics/goods supplied by the operational creditor to the corporate debtor along with the statement of delivery for both the financial years, for suggesting that all the purchase orders were promptly responded and there is no question of delay in delivery of the goods for enabling the respondent to claim any loss because of the change in the shipment of the goods from sea to Air carriage. 24. The arguments raised by the petitioner sound quite attractive, but the Adjudicating Authority while exercising summary jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a defence in the proceeding under the Code, that would be a matter of serious concern, for which the petitioner can always apply for prosecuting the respondent at the appropriate stage on determination of the dispute by a civil court. But to adjudicate upon the issue of forgery of the record is the handicap of the Adjudicating Authority in the summary jurisdiction. 27. A question had also cropped up during the course of arguments on 17.05.2017. as to whether expenditure in respect of the aforesaid amount of debit notes was reflected in the Balance Sheet of the Corporate Debtor for the year 2015-16. The balance sheet for the year 2015-2016 was showing an amount of Rs. 53,84,532/. towards Air freight charges under the head fabrication charges and other manufacturing charges. It seems that the above expenditure incurred by the respondent pertains only to the manufacturing process. The respondent filed the ledger account of the freight and insurance for the year 2015-16 with the additional counter affidavit suggesting that the total amount of freight charges incurred by the respondent was Rs. 2,09,61,964,05 out of which Rs. 53,84,531.94 is mentioned in this statement Annexure R-1 t ..... 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