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TMI Blog2017 (10) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay 50% at once and pay rest of the amount in instalments. Such understanding cannot be treated as a dispute regarding the existence of the amount of debt. More so, it confirms the existence of debt. The dispute raised in reply notice dated 17.11.2016 is only in respect of the authority of the person has signed the cheques but not to the existence of debt. This Adjudicating Authority directed the Applicant to comply with Section 9(c). The Applicant filed Additional Affidavit along with Certificate of the Banker. In the Affidavit, it is stated by the Deponent that he is enclosing a copy of the Certificate from the Financial Institution maintaining the account of the Operational Creditor confirming that there is no payment of unpaid operational debt by Corporate Debtor. The Certificate reads as to what are the cheques received from Durolam Limited for clearing. The Applicant party also filed Statement of Account from the Bank and therefore there is sufficient compliance of Section 9(c) of the IB Code. The Application is complete in all respects. There is no dispute raised by the Respondent regarding the existence of the amount of debt, or quality of goods supplied. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 due and payable by the Respondent Company. Applicant filed Ledger Account of the Respondent as Annexure A . According to the Applicant, Respondent made use of the goods supplied by the Applicant without any complaint. Respondent failed to make payment for the goods supplied inspite of several oral requests. On the other hand, Respondent issued 11 cheques for payment of the outstanding amount, but all the relevant cheques given by the Respondent were dishonoured on 18.10.2016 and for such dishonour of cheque criminal complaints have been filed against the Respondent Company under Section 138 of the Negotiable Instruments Act which are registered as Criminal Case Nos. 51/2016. 52/2016, 53/2016 and 58/2016. Applicant issued a Notice dated 25th October, 2016 Annexure B to the Application demanding payment of outstanding amount. Applicant got issued a legal notice dated 8th December, 2016 to the Respondent calling upon it to make payment of the outstanding amounts within 21 days vide Annexure C . Respondent gave Reply Notice dated 3rd January, 2017 vide Annexure D . 2.3 Applicant issued Demand Notice dated 26.4.2017 under Section 8(1) of the IB Code vide Annexure I . Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e new management of the Company at the time of taking over paid 50% of the debts to all the Creditors. At that time, Applicant did not present and did not make any claim. In the Further Objections, it is stated that in reply to the statutory notice dated 8.12.2016 under Sections 433 and 434 of the Companies Act issued by the Applicant, Respondent issued a Reply dated 3.1.2017. In the said Reply dated 3.1.2017, Respondent mentioned about the dispute which is existing between the directors of company but not about existence of debt. In the Reply to the statutory notice issued under Section 138 of the Negotiable Instruments Act Respondent has raised a dispute with regard to the authority of the person that signed the cheques, but not about debt. Another objection raised is that there is a dispute with regard to the amount claimed by the Applicant and there is no clarity as regards the date of cause of action. According to the applicant, the Applicant is entitled to claim interest only 6 months after the date of Invoice since 6 months time was given for making payment but Applicant claimed interest from the date of Invoice. 8. Following are the points that need determination in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 16.11.2016 for the statutory notice issued under Section 138 of the NI Act. In the reply to the Demand Notice issued, a suggestion for reconciliation was made by the Respondent. 9.3 The Hon ble National Company Law Appellate Tribunal, in Kirusa Software (P.) Ltd. v. Mobilox Innovations Private Ltd., decided on 24th May, 2017 , held in Paragraph No. 31 as follows; 31. The dispute under I B Code, 2016 must relate to specified nature in clause (a), (b) or (c), i.e., existence of amount of debt or quality of goods or service or breach of representation or warranty. However, it is capable of being discerned not only from in a suit or arbitration from any document related to it. For example, the operational creditor has issued notice under Code of Civil Procedure Code, 1908 prior to initiation of the suit against the operational creditor which is disputed by corporate debtor. Similarly notice under Section 59 of the Sales and Goods Act if issued by one of the party, a labourer/employee who may claim to be operation creditor for the purpose of Section 9 of I B Code, 2016 may have raised the dispute with the State Government concerning the subject matter i.e. exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for reconciliation is correct. But, as can be seen from the Reply Notices dated 17.11.2016 and 3.1.2017 that were placed on record that due to the dispute amongst the Directors there was an understanding among family members of the Respondent Company and the Applicant family people to pay 50 per cent of the amounts and rest of the amount in 20 equal monthly instalments. In view of the said statement in the Reply Notices, it cannot be said that there is any dispute regarding the existence of amount of debt. It only suggests that there is an understanding between the family of the Applicant and the family of the Respondent to pay 50% at once and pay rest of the amount in instalments. Such understanding cannot be treated as a dispute regarding the existence of the amount of debt. More so, it confirms the existence of debt. The dispute raised in reply notice dated 17.11.2016 is only in respect of the authority of the person has signed the cheques but not to the existence of debt. 10. In relation to Point No. (ii), this Adjudicating Authority directed the Applicant to comply with Section 9(c). The Applicant filed Additional Affidavit along with Certificate of the Banker. In the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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