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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 ..... the issue of forgery of the record is the handicap of the Adjudicating Authority in the summary jurisdiction. The present is thus not a case in which it can be safely inferred that no notice of dispute was received by the operational creditor for entitling the petitioner to an order of admission under clause (i) of sub-section 5 of Section 9 of the Code. Having said so, there is no alternate except to hold that the notice of dispute has been received by the operational creditor and, therefore, the petition deserves to be rejected. - CP (IB) NO. 23/CHD/HRY/2017 - - - Dated:- 22-5-2017 - MR. R.P. NAGRATH, J. For The Applicant : Mr. Mohit Jolly, And Mr. Vikas Malhotra, Advocates For The Respondent : Ms. Kiran Sharma, Insolvency Professional, Mr. Ashwani kumar, Advocate ORDER 1. This petition has been filed by the Operational Creditor to set in motion the Corporate Insolvency Resolution Process as contemplated under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred here-in-after as the 'Code') in relation to M/s Foremost International Private Limited (for brevity Respondent/Corporate Debtor). The petitioner is a partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh credit amount of the petitioner from the Corporate Debtor for the period from 01.04.2015 to 24.01 2017 in a tabular form. 6. The instant petition was filed after the petitioner/operational creditor served a demand notice Annexure A-5 to the respondent in terms of section 8 of the Code. This notice is dated 07.04.2017 and contains the aforesaid details of defaults along with computation of the amount due. The due dates of 72 bills are also set out in the tabulated computation attached with the demand notice. Along with the demand notice, copies of all the 72 bills were also sent to the Corporate Debtor. The petitioner requested the respondent to demonstrate about the payment of the outstanding amount within a period of 10 days of receipt of the notice by mentioning the particulars required by Section 8 of the Code. 7. The demand notice was sent to the respondent by registered post on 12.04.2017 as per the postal receipt Annexure A-6 and as per the track report of the postal department, the same was delivered to the respondent on 13.04.2017. The respondent sent reply dated 24.04.2017 Annexure A-8, after the expiry of 10 days of receipt of the notice. In any case, it is quite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. The respondent filed additional counter affidavit of Mr. Varun Moudgil along with the ledger account of the freight and insurance charges incurred during the financial year 2015-2016 and copies of six purchase orders, in which due to late delivery of the raw fabrics, the stitched garments were shipped by Air after paying the Air freight charges along with the Air freight bills. 13. The other conditions laid down in Section 9 of the Code having been complied, the Adjudicating Authority is to proceed in terms of sub-section (5) of Section 9 of the Code, which reads as under:- (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2) by order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in question. The petitioner's claim is supported by 72 invoices, copies of which were sent to the respondent. The respondent has itself relied upon the statement of confirmation of accounts for the period from 01.04.2015 to 31.3.2016 sent by the petitioner to the respondent. The said document dated 01.04.2016 Annexure 'B' is copy of the ledger account of the respondent maintained by the petitioner and relates to the financial year 2015-2016 ending on 31.03.2016. The copy of ledger account of the petitioner maintained by the respondent is at Annexure A attached with the counter affidavit. 17. It is quite apparent from the facts of the case and the documents placed on record that there was an outstanding amount of about ₹ 84,27,531/-, but that is tried to set off on the basis of certain debit notes in respect of financial years 2015-2016 and 2016-2017. Copy of the ledger account of the petitioner maintained by the respondent company for the financial year 2016-2017 i.e. the period ending on 31-3-2017 is Annexure D. 18. The disputed debit notes for the year 2015-16 are part of Annexure C (Colly) attached with the counter affidavit. These are two debit note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009 for ₹ 1,000/-; dated 31.03.2010 for ₹ 12,000/- at page 51; dated 02,02.2011 for ₹ 75,000/- at page 53; dated 30.03.2011 for ₹ 3,86,570/- at page 55, another dated 0404.2017 for ₹ 9,788/- at page 56 of the counter affidavit; dated 24.06.2011 at page 57 for ₹ 13,430/-; dated 09.08.2012 at page 63 for an amount of ₹ 6,20,120/-; debit note dated 10.01.2013 at page 71 for ₹ 1020/-; dated 31.03.2014 at page 76 for ₹ 1,00,000/- and the other dated 10.03,2015 at page 81 for ₹ 44,800/- do not bear the bill numbers, but no objection to the said debit notes was ever raised. The learned counsel for the respondent, thus, wanted to say that issuance of the debit notes was a practice, A minute perusal of the aforesaid debit notes would show that although these do not bear particulars of the bill to which these relate, but are signed by the representative of Ajay Co. except the bill at page 81 dated 10.03.2015. In any case this debit note dated 10-03-2015 contains the details reasons of rejecting some of the goods. 21. Learned counsel for the petitioner would further contend that the respondent-corporate debtor, had admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed along with the documents, copy of the ledger account of the petitioner maintained by it showing the entries dated 31.03.2016 of three debit notes. Accordingly, on 31.03.2016, there was a total credit of ₹ 35,25,849/-, which was carried forward in the next financial year. There is also the certificate of the Chartered Accountant of the respondent/corporate debtor dated 13.05.2017 verifying the aforesaid figure of the closing balance as on 31.03.2016. The learned counsel for respondent further submitted that on the basis of the books of account maintained by the respondent, the Annual Report for the year 2015-2016 containing the balance sheet as on 31.03.2016 with figures of the previous year ending on 31.03.2015 was prepared and signed by the directors of the respondent-company and countersigned by the aforesaid Chartered Accountant Anil Kumar Bansal on 02.09.2016, much before the filing of the instant petition or even the enforcement of the Insolvency and Bankruptcy Code. The learned counsel further referred to statement of ledger account of the petitioner maintained by the respondent Annexure D, in which the entries of the debit notes relating to the financial year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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