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TMI Blog2017 (11) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... h the amounts were already paid and they relate to the period from 31.12.2014 to 31.3.2015 and 21.7.2015 to 15.1.2016. Moreover, in demand notice in Form-3 there is no need to enclose the Invoice. In view of the above said clarification, the point raised by the learned Counsel for the Respondent, that the Invoices furnished to them along with the demand notice are not the correct invoices, does not stand to reason and that cannot be a ground to reject the Application especially when the Respondent is admitting the operational debt. In view of the above discussion, this Application deserves to be admitted and it is accordingly admitted. The Applicant did not propose the name of the Insolvency Resolution Professional. The Applicant requested this Adjudicating Authority to appoint an Interim Resolution Professional. This Adjudicating Authority hereby order reference to Insolvency and Bankruptcy Board of India, New Delhi, to recommend the name of Insolvency Professional against whom no disciplinary proceedings are pending to this Authority within 10 (Ten) days from the date of receipt of reference to act as Interim Insolvency Resolution Professional. This Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is annexed as Annexures A , B and C to the Demand Notice dated 3rd March, 2017. It is stated by the Applicant that along with the Demand Notice dated 3rd March, 2017 it has annexed Annexures A , B and C and they correspondent to Exhibits E , F and G of the Application. Applicant also filed Additional Affidavit along with copy of the Resolution passed by the Board of Directors of Neeraj Paper Agencies Ltd., held on 7th February, 2017 whereby it was resolved to appoint and authorise J. Sagar Associates, Advocates, Mumbai to issue Demand Notice to Rainbow Papers Limited, Ahmedabad (Respondent) under Section 8 of the IB Code read with the IB Rules. 4. Applicant served the copy of the Application on the Respondent and filed Track Report of the Speed Post. Copy of the Application was received by the Respondent on 24.7.2017 as per the Track Report. 5. This Application was, for the first time, listed before this Authority on 21.8.2017. Respondent appeared through learned counsel. At the request of the Respondent, the matter was posted to 24th August, 2017 for filing objections. Respondent filed objections on 24th August, 2017. Applicant was directed to file Certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent in the Objections, has been complied by producing the Resolution dated 7th February, 2017. There is no need to doubt the Resolution dated 7th February, 2017 passed by the Board of Directors of the Applicant Company since it is notarized by a Notary after verifying with the original. Therefore, the objection regarding the person issuing the notice under section 8 of the Code is not sustainable. 6.2 The second objection raised is that Operational Creditor has not filed the Certificate issued by the financial institution under Section 9(3)(c) of the Code regarding the non-payment of operational debt. In fact, along with the Application, Applicant did not file the Certificate issued by the financial institution, i.e., Oriental Bank of Commerce. But Applicant filed a Certificate dated 4.9.2017 issued by the Oriental Bank of Commerce wherein the account of the Applicant Company is being maintained. The Certificate issued by the Oriental Bank of Commerce on 4.9.2017 reads as follows; CERTIFICATE To Whomsoever it may concern This is to certify M/s. Neeraj Paper Agencies Ltd. has not received any payments/operational debt from Rainbow Papers Ltd in its Accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te issued by the Bank is sufficient compliance of Section 9(c) of the IB Code. 6.4 The next objection raised by the Respondent is that Operational Creditor has supplied the goods which were having excessive moisture or wrong weight and therefore the amounts in respect of the defective goods supplied were deducted from the invoice amount, and it is made clear from the Working for Computation of Default filed by the Applicant, but the Applicant did not disclose the reason for deducting the amount by the Respondent and thereby suppressed the material facts. According to the Respondent, as per the understanding between them Respondent is entitled to deduct amount towards lower quality of goods supplied and accordingly the amounts were deducted from the Invoices. 6.4(a) On this aspect, learned counsel appearing for the Applicant contended that the dispute regarding the defective quality of goods supplied has not been raised by the Respondent either prior to issuance of Demand Notice or in Reply to the Demand Notice. 6.4(b) In fact, the Applicant claimed only the amount which is due to him after deducting the amount towards the defective goods supplied and therefore there cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to receipt of notice under sub-section (1) of Section 8 of the I B Code , one can say that a dispute is pending about the debt. Mere raising a dispute for the sake of dispute, unrelated or related to clause (a) or (b) or (c) of Sub-section (6) of Section 5, if not raised prior to application and not pending before any competent court of law or authority cannot be relied upon to hold that there is a dispute raised by the corporate debtor. The scope of existence of dispute , if any, which includes pending suits and arbitration proceedings cannot be limited and confined to suit and arbitration proceedings only. It includes any other dispute raised prior to Section 8 in this in relation to clause (a) or (b) or (c) of sub- section (6) of Section 5. It must be raised in a court of law or authority and proposed to be moved before the court of law or authority and not any got up or malafide dispute just to stall the insolvency resolution process. 32. There may be other cases such as a suit relating to existence of amount of debt stands decided and decree is pending for execution. Similarly, existence of amount of debt or quality of goods or service for which a suit have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a dispute. 6.4(e) The Hon ble National Company Law Appellate Tribunal in the Judgment in the case of Kirusa Software (P.) Ltd. (supra), relied upon by the learned counsel for the Applicant, also clearly held that Mere a dispute giving a colour of genuine dispute or illusory, raised for the first time while replying to the notice under Section 8 cannot be a tool to reject an application under Section 9 if the operational creditor otherwise satisfies the adjudicating authority that there is a debt and there is a default on the part of the corporate debtor. In the case on hand, the dispute has not been raised even in the Reply Notice. The dispute regarding the quality of goods was raised for the first time in the objections, that too having deducted the amounts towards the inferior quality of goods supplied. Therefore, the issue of dispute raised in the objections is not a genuine dispute and it is an illusory dispute. 6.5 In the further Affidavit, another objection was raised by the Respondent stating that the Resolution produced at Exhibit A at Page 12 of the Application did not authorise the initiation of insolvency proceedings by the Operational Creditor against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed is in respect of the due amount for the Invoices from 21.7.2015 to 15.1.2016. The amount claimed in Annexure B is the amount claimed towards the interest on the Invoices for the period from 31.12.2014 to 31.3.2015 whereunder the actual Invoice amounts were paid with delay. A perusal of the Annexure C shows that it relates to the claim of interest on the Invoices from 21.7.2015 to 15.1.2016 for the delay in payments against actual invoice amount already paid. It is stated by the learned counsel for the Respondent that Invoices supplied to them along with the demand notice are not the Invoices for which the claim has been made. In the case on hand, the claim of the Applicant is in respect of Invoices for the period from 21.7.2015 to 15.1.2016 and also interest at the rate of 24% in respect of the Invoices for which the amounts were already paid and they relate to the period from 31.12.2014 to 31.3.2015 and 21.7.2015 to 15.1.2016. Moreover, in demand notice in Form-3 there is no need to enclose the Invoice. In view of the above said clarification, the point raised by the learned Counsel for the Respondent, that the Invoices furnished to them along with the demand notice are n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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