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TMI Blog2017 (9) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions for 'supply of Rice and paddy' with respondent Corporate Debtor from February 2015 to July 2015 and supplied Rice and Paddy worth Rs. 37,21,60,517/- (Rupees Thirty-Seven Crores Twenty One Lakh Sixty Thousand Five Hundred Seventeen) to the Corporate Debtor. Copy of invoices in this regard has been attached. 3. It is submitted that the total payment received by operational creditor in respect of the supplies was only INR 33,85,43,883/- (Rupees Thirty Three Crores Eighty Five Lakh Forty-Three Thousand Eight Hundred Eighty-Three Only) till 26th May, 2016. The remaining unpaid amount of Rs. 33,616,634/- (Rupees Three Crore Thirty Six Lakh Sixteen Thousands Six Hundred Thirty Four only) is still outstanding from the Corporate Debtor. 4. It is further contended that despite several reminders and follow up with the Corporate Debtor to repay the outstanding amount along with interest, the Corporate Debtor has failed to make payment of the outstanding dues to the operational creditor. The operational Creditor has claimed that an amount of Rs. 7,51,40,575/- (Rupees Seven Crores Fifty-One Lakh Forty Thousand Five Hundred Seventy-Five Only) ( principal amount Rs. 33,616, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand notice was to be served along with copy of invoices on the basis of which the claim of the operational creditor is based. It is the case of the respondent that the demand notice served to the corporate debtor had no mandatory attachments as is evident from the minimum rate of Rs. 17/- charged by the postal department. Respondents have submitted that demand notice has not been received by any of the addressee except one ex-director of the respondent company. It is also their case that the demand notice by electronic mail service on 13th June, 2017 to key managerial personnel of the corporate debtor was also a 3 pager document without any attachment. Respondents submitted that the demand notice was devoid of any attachment and was incomplete and therefore goes to the roots of the case vitiating the whole proceedings. 9. It is seen that statutory demand notices dated 5th June, 2017 in FORM 3 were duly sent through speed post to the registered office of the corporate debtor as well as at the address of the directors of the company. Such dispatch of demand notice at the registered office of the company is in conformity of sub-rule 2(a) of rule 5 of the Rules, 2016. When any comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that remaining outstanding payments will be made to S.K..K. Agro Pvt. Ltd. 12. Needless to say that the onus to prove the existence of the alleged oral settlement lies with the respondent. When a person is bound to prove the existence of any fact, the burden of proof lies on that person. It is pertinent to note here that operational creditor has vehemently opposed that S.K.K. Agro Private Limited is not at all related with the operational creditor and the operational creditor has not given any approval vide broad resolution or through any letter to anyone to collect payments on its behalf. Besides huge dues in crores are outstanding. Once huge stake is involved and the alleged oral settlement has been categorically denied, heavy onus lies on the respondents to prove that the outstanding dues have been paid to third parties as per the oral settlement. 13. However, there is absolutely no documentary evidence adduced to support of the contentions of the corporate debtor. It is only stated that audio recording of the said joint meetings were done and are in possession of the corporate debtor and can be produced before the bench if asked for. However, no transcription of the allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that "substantial amount" has been paid. Even though huge financial transactions are involved between legal entities, absolutely no document of any of the companies, reflecting the transaction in question, have been placed. Respondents have additionally taken the stand that there is existence of dispute with respect to the debt and demand in question. There has been no communication of dispute to the operational creditor about the quality of goods supplied. No damage/counter claim has been lodged. No arbitration and/or legal proceedings in the matter are pending. When there is absolutely no document or particulars to support the claim of existence of dispute, the mere claim of dispute rose in the reply and in the pleadings in defense can be termed as vague and motivated to evade the liability. 16. Supply of rice and paddy by applicant operational creditor to the respondent company has not been denied. Vouchers and the relevant ledger account has been produced inter alia showing cost of goods supplied, amount received and the amount of operational debt outstanding. None of the entries in the account has been specifically disputed. On the contrary respondent has taken the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no such meeting has/had ever taken place wherein all the parties as alleged by the CD were present and there has never been any discussion for the settlement wherein it was agreed unanimously or by me or by the OC that the payment due to OC by the CD can be paid to S K K Agro Private Limited by CD on behalf of OC (9) That no Suit or Arbitration proceedings have ever been initiated or pending in any Court or Tribunal on the date of Demand Notice i.e. 5th of June, 2017 or ever today between OC and CD regarding the above said payments. (10) That in Advocate reply of CD, CD has admitted in OC account of CD ledger that an amount of INR 2,98,08,542/- (Rupees Two Crores Ninety Eight Lakhs Eight Thousand Five Hundred and Forty Two Only) is due to OC from CD. (11) That I affirm that banker of OC has certified that three cheques of Rs. 2.50,00,000/- (Two Crores and Fifty Lakhs Only) issued by CD in favour of OC have been returned unpaid due to insufficient funds. (12) That I affirm that no dispute in respect of outstanding amount of debt of INR 2,98,08,542 (Rupees Two Crores Ninety Eight Lakhs Eight Thousand Five Hundred and Forty Two Only) as admitted by the CD in the account o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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