9911796707
TMI Blog2017 (8) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 19.10.2015 and its registered office is at Gurgaon. The Certificate of Incorporation pursuant to the change of name dated 19.10.2015 is Annexure A-1. The facts in relation to C.P. (IB) No. 13/Chd/Hry/2017 2. The Corporate Debtor-Company approached the Applicant for the purchase and supply of various qualities of interlining and lining trims. The Corporate Debtor issued purchase order dated 11.03.2014 to purchase goods worth Rs. 2,13,500/-. The purchase order clearly stipulated that payment against the goods supplied is to be made within sixty days after delivery of goods. Copy of the purchase order is Annexure A-3. After that the applicant started supplying the goods, which were accepted without any dispute or demur The Company acknowledged the receipt of goods by putting its stamp and signatures on the invoices on receipt of the material. It was also stipulated that any defect/shortage/rate difference was to be notified to the Applicant within seven days. The duly acknowledged and signed invoice dated 12.03.2014 of Rs. 2,13,500/- and another invoice dated 17.06.2014 for Rs. 70/- are at Annexure A-4. Non-payment of amount of the transaction within the due date, interest w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above application that the matter was registered under Section 15 of SICA, the winding up petition before the Hon'ble High Court was withdrawn. Copy of the order dated 06.09.2016 passed by Hon'ble High Court is Annexure A-17. The order dated 06.09.2016 of the Hon'ble High Court is reproduced below: "Counsel for the respondent has submitted that this petition is not maintainable because the respondent company is before the BIFR. It is also submitted that the application in this regard has been filed, which has not been listed. Faced with these circumstances, counsel for the petitioner prays for withdrawal of the petition at this stage. Dismissed as withdrawn with liberty to revive the petition after the proceedings of the BIFR are over." 7. The instant petition has been filed under Section 9 of the Code by sending a demand notice dated 15.02.2017 in Form 3, as provided in Rule 5(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for short 'the Rules') to the Corporate Debtor, in terms of Section 8 of the Code. It is stated that the notice was duly received by the Company by Speed Post, on 17.02.2017 and on 21.02.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also stipulated that in case of default in making payment within the due date, the Applicant would charge interest @ 24% per annum Within seven days to 10 days of the supply of the goods, the 'Corporate Debtor' was required to send the rejected goods to the warehouse of the 'Operational Creditor 1 along with the challan. On receiving the challan, the Corporate Debtor was to raise a debit note and the Operational Creditor' was to raise credit note of that account. 10. It is further stated that out of the amount of Rs. 12,49,307.50, the Corporate Debtor made the payment of Rs. 80,473.50 on 26.02.2015 and therefore, the balance outstanding liability is Rs. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied statements of its current bank accounts starling from 01.04.2016 to 13.03.2017 Annexure A-22. This is supported by the Certificate Annexure A-23 from Chartered Accountant it is certified that on perusal of the aforesaid account statements of the Applicant maintained in the Bank as per law, the respondent has made the last payment amounting to Rs. 80,473-50Ps on 26.02.2015 and no payment/deposit has been made in the account as mentioned in the statement of account after 26.02.2015 till the date of certificate. The certificate is dated 11.03.2017. It is further certified by the Chartered Accountant that no payments epos it amounting to Rs. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isited in our factory premises and inspected the goods followed by a meeting on 18.2.2015 to sort out the issue. 4. That during the meeting on 18.2.2015, your authorised official, while accepting and acknowledging the inferior quality of goods/lining/interlining fabric supplied by you, assured to our Company to either refund the credit/charges against the value of such goods of inferior quality supplied by you or in alternative provide fresh lining/interlining fabric of 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 Rs. 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 Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of institution have not been mentioned. It is further contented that even the first order passed by the Civil Court in the said Suit, issuing notice to the Applicant as Defendant has not been attached. 22. Having thoughtfully considered the matter, it seems that, on the date of sending reply dated 28.02.2017, the Civil Suit was yet to be entertained by the Civil Court. That is why, copy of the plaint, the particulars 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before the Hon'ble High Court that the petition is not maintainable because the respondent company is before the BIFR. Faced with these circumstances, the C.P. was dismissed by Hon'ble High Court as withdrawn with liberty to revive the petition after the proceedings of BIFR are over. The facts do indicate that the respondent company itself had gone to BIFR for re-construction of the sick company, 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat over a period of three years and four months, the adhesives were supplied, received without objections as to the quality, utilized, goods produced, sold to retailers, who in their turn, sold to the customers. The matter relates to the sales of goods. There is no contract that the quality was to be of the same level as that supplied to Liberty nor that any test 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
