9911796707
TMI Blog2017 (8) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Securitization and Reconstructs of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. ii) That the supply of essential goods or services to the 'Corporate Debtor', if continuing, shall not be terminated or suspended or interrupted during moratorium period iii) That the provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. iv) That the order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33 as the case may be. Since the name of Interim Resolution Professional has not been proposed by the Applicant, we direct that a reference be made to the Insolvency and Bankruptcy Board of India for recommending an Insolvency Professional, who may act as Interim Resolution Professional in terms of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,13,570.40. Copy of the confirmation of accounts is dated 07.01.2015 Annexure A-5. The Company also submitted its ledger account for the period from 01.04.2014 to 05.01.2015, wherein it acknowledged the outstanding liability of ₹ 2,13,500/-. Copy of the ledger account of the Corporate Debtor' for the aforesaid period is Annexure A-6. The amount was not paid despite repeated demands. 3. Thereafter the Applicant sent a legal notice dated 02.03.2015 under Section 433 read with Section 434 of the Companies Act, 1956, admitting the outstanding payment within 21 days. Copy of the notice is Annexure A-9. 4. It is stated that as a counter blast to the legal notice, the company sent a fetter dated 04.09.2015 raising the dispute of goods being of Inferior quality. In the said notice, the Company falsely alleged about a meeting dated 27.02.2015, which never took place between the parties. There was also a reference in the reply to a letter dated 27.02.2015 sent by the company, which has never been received by the Applicant. The facts stated in the said letter are stated to be concocted. Copy of the letter dated 04.09.2015 sent by the Company is at Annexure A-10. 5. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssertion that the notice of raising the issue of inferior quality of goods was received on 25.02.2017 and also that a civil suit for recovery of an amount of ₹ 2,16,610/- has been filed in the Civil Court. Anyhow, copy of the plaint in the said Civil Suit was not attached with the reply. 8. The Applicant/Operational creditor has filed this application in Form 5 as prescribed by Rule 6 of the Rules. This is accompanied with the documents and records mentioned therein. In relation to C.P. (IB) No. 14/Chd/Hry/2017. 9. The controversy in the instant case is exactly similar to the first case. In the instant case, the purchase orders were issued by the Corporate Debtor' from time to time submitting that the payment against the goods supplied shall be made within sixty days of the delivery of goods. The tabulated information with regard to the purchase orders placed by the Company and the amount of the invoices are given below- Date Purchase Order No Amount (in Rs.) 11.03.2014 PO-13-1681 1,04,000.00 22.03.2014 PO-13-1733 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor made the payment of ₹ 80,473.50 on 26.02.2015 and therefore, the balance outstanding liability is ₹ 11,68,834/- along with interest. However, the balance outstanding amount has not been paid despite demands, orally as well as written communications. Various emails and SMSs were also sent. Copies of emails and SMSs are Annexure A-5. There is also the similar allegation of confirmation of the accounts by the Company on 07.01.2015. Copy of the duly acknowledged and signed confirmation of account is Annexure A-6. The Company also acknowledged and admitted the liability by submitting its ledger account for the period from 01.04.2014 to 05.01.2015. This ledger account of the outstanding liability is to the tune of ₹ 12,49,307.50 and the copy of ledger account is Annexure A-7. There are similar allegations of filing of the winding up petition before the Hon'ble Punjab Haryana High Court after serving a statutory notice, which was ultimately disposed of as withdrawn. It was after the filing of winding up petition that the respondent raised the issue of inferior quality of goods by sending notice for the first time on 21.09.2015 to create a defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dated 11.03.2017. It is further certified by the Chartered Accountant that no payments epos it amounting to ₹ 11,68,834/- has been deposited/paid by the respondent in the bank account of the Applicant/Operational Creditor. The Bank details of the Applicant are also attached with the report of Chartered Accountant at page 312. It is observed that the contents of the information filed under Section 9 is supported with an affidavit of the authorised signatory of the Applicant-company. 16. Sub-section 5 of Section 9 of the Code reads as under: The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an 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 information utility; and (e) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good quality standards as ordered by our Company after discussion the issue with your Board of Directors and to revert to or Company within 7-10 days. 5. However, when no response was received from you and/or your authorised officials within the time assured by our authorised officials, our Company had issued a letter dated 27.02.2015 again informing you about the readymade garments manufactured by us from inferior quality fabric/cloth supplied by you were lying dumped in our Company's factory premises and we raised a claim of ₹ 13,99,833/- upon you against such rejected goods due to the interior quality and sub-standards lining/interlining fabric supplied by you. 6. However, to utter dismay to our Company, instead of keeping by your words and promises and settling the claim of our Company in your accounts, you the Noticee of the dispute, in sheer disregard to your assurances and in utter disrespect to the long relationship with our Company and only as a counterblast of a letter dated 27.02.2015 by our Company, issued a Legal Notice to our company, thereby alleging against our Company and raised false claims. 19. It is further stated that the respondent com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars of suit number and the first order have not been filed. 23. The question, however, would still be whether the earlier notice dated 21.9.2015 sent by respondent raising the issue of the inferior quality of the goods (Annexure A/14) attached by the Applicant would amount to raising of the dispute thereby resulting in rejection of the instant petition. 24. The learned counsel for respondent company referred to judgment passed by the Hon'ble Principal Bench in C.A. No. (PB) 07/PB/2017 and C.A. No. (IB)08/PB/2017. titled M/s. One Coast Plaster Vs. M/s. Ambience Private Limited and M/s. Shivam Construction Company Vs. M/s. Ambience Private Limited. In the said case, raising of the issue about quality of the work in the reply to the notice under section 8 of the Code was considered a notice of dispute dis-entitling the applicant for an order of admission and therefore, the application was rejected. The facts of the case before the hon'ble Principal Bench were peculiar to the said case wherein the balance outstanding amount was upto the Month of June 2016. It was also found that the work contract was predominantly concerning labour contract and the rate for the executio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, it is quite dear that the notice dated 21.09.2015 was issued try the Company after more than one year of the last transaction simply to set up a defence in the winding up petition. Before that, there was, in fact, total admission by the Corporate Debtor' - Respondent in the documents of confirmation of Account and its Ledger Account. 28. The term 'dispute' is defined in Section 5 (6) of the Code which reads as under:- dispute includes a suit or arbitration proceedings relating to- a) the existence of the amount of debit; b) the quality of goods or service; or c) the breach of a representation or warranty. 29. Therefore, the dispute relating to quality of goods and service would also be included in the said definition. The question basically is whether raising this dispute in the Notice dated 27.09.2015 more than one year after the last transaction is covered within the scope of the term 'dispute', especially when the recourse to the recovery of the outstanding amount by filling a civil suit seems to have been taken just at the time of sending reply to the demand notice under Section 8 of the 'Code' in February, 2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be conducted either at the appellant's premises before the goods were despatched nor at the respondent's premises when the goods reached there. The complaints were only raised after the adhesives were consumed in the manufacture and the shoes were sold to the retailers and other customers. It was thus held that in view of the above, it is difficult to say either that the amount was not admitted. 33. In Max India Limited versus Unicoat Tapes (P) Ltd., C.P. No. 99 of 1994 decided on 04.07.1997, the Punjab and Haryana High Court held that in case there was any dispute with regard to quality of goods, the respondent-company would not have placed any further order for supply of goods or would not have made payments on various dates between February and October, 1992, it was also noticed that before filing of the petition, registered notice was sent by the petitioner-company through its Advocate and in case there was any dispute, respondent-company had the opportunity to explain the same in its reply. Instead of explaining as to why the notice was not replied to, the respondent-company has simply denied the receipt of the same. In view of the circumstances discussed abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
