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TMI Blog2017 (11) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant in appropriate time. No explanation forth coming from the applicant regarding the disputes highlighted in the notices issued by the respondent to the applicant. More over the copy of reply notice evidently received by the applicant not at all produced along with the application. The documents produced on the side of the respondent not at all challenged on the side of the applicant. Therefore, the respondent succeeded in proving that a dispute regarding quality of the goods and the money liable to be paid by the respondent was pending for consideration with the applicant even before the statutory notice issued by the applicant and that it is a genuine dispute which according to us comes under the purview of section 5(6) of I&B code. Respondent has succeeded in proving existence of a genuine dispute prior to issuance of demand notice and, therefore, this application is liable to be rejected. - C.P. (I.B.) NO. 301/KB/2017 - - - Dated:- 11-10-2017 - MR. VIJAY PRATAP SINGH AND MR. JINAN K. R., JJ. For The Petitioner : Shiv Shankar Banerjee, Adv., Akash Dey, Company Secretary and Basabraj Chakraborty, Adv. For The Respondent : Anuj Singh, Avishek Das, Ritoban Sark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Tribunal and therefore the application is liable to be admitted. 4. The respondent who entered appearance filed affidavit in opposition contending that the application filed is not maintainable mainly on two grounds. Firstly, respondent contends that the Form 3 demand notice and Form 4 have not been issued by the Operational Creditor but by an advocate and as such, not in consonance with the statutory provisions of the Code. Secondly respondent contends that the applicant filed the application suppressing the existence of a long existing previous dispute regarding the quality of the goods received by the respondent. The respondent further contents that application was filed without an affidavit Under. S.9(3)(b) and financial institutions certificate Under section 9(3)(c) and therefore is incomplete. The applicant further contents that IRP s registration is expired and that the name of the respondent referred in the application is incorrect. Upon the said contentions the respondent prays for dismissal of the application as not maintainable under section 9 of I B Code. 5. No rejoinder filed by the applicant even if time granted. However by filing an affidavit dated 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra seen produced in this application. No document also produced on the side of the applicant to show that who was the real proprietor of the applicant. Whether Mr. Mohan Shaw is the sole proprietor of the applicant and whether Laxmi Narayan Shaw was a proprietor at the time of issuing authorisation to the advocate who issued demand notice here in this case no data. The above said discussions leads to a conclusion that the advocate who issued the demand notice in Form 3 was not an authorized person as stated in the notice or that he was holding any position in the applicant proprietary concern. The above said circumstances indicate that the applicant operational creditor not at all issued the statutory notice as provided under section 8(1) of I B Code. In Macquarie Bank Ltd. v. Uttam Galva Metallic Ltd. Limited - Company Appeal (AT) (Insol.) No. 96 2017 ,, the Hon ble NCALT has held that: - ....In view of such provision we hold that an advocate/lawyer or Chartered Account or a Company Secretary or any other person in absence of any authority by the Operational Creditor , and if such person do not hold any position with or in relation to the Operational Creditor , canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the I B Code and for that the petition under section 9 at the instance of the Respondents against the Appellant was not maintainable. 8. In view of the aforesaid discussion and bear in mind the principles laid down in the above referred decisions it is certain that a demand notice issued in the instant case was not issued in terms of the provisions of the Adjudicating Authority Rules and I B Code. We hereby hold that the demand notice issued by the applicant advocate was not issued Under S. 8(l) of I B Code, and therefore the contention on the side of the respondent that Annexure A notice is not a notice issued under S. 8(1) of I B code is sustainable. This point is answered accordingly. Point No. 2. 9. The second and main contention of the respondent is that since the respondent already raised a dispute as against the claim of the applicant and issued reply notice raising the dispute already pending in between the applicant and the respondent the instant application is not maintainable. The learned Counsel for the respondent highlighting Annexure G reply notice as well as Annexure A to Annexure D and Annexure F submits that respondent already raised dispute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of I B Code. 12. Here in this case respondent has no case that the dispute he already raised with the applicant is pending for any consideration before any adjudicating authority or in any Court. However, it has come out in evidence that respondent disputed quality of the goods received upon receipt of the goods and communicated the complaint in writing to the applicant in appropriate time. No explanation forth coming from the applicant regarding the disputes highlighted in the notices issued by the respondent to the applicant. More over the copy of reply notice evidently received by the applicant not at all produced along with the application. The documents produced on the side of the respondent not at all challenged on the side of the applicant. Therefore, the respondent succeeded in proving that a dispute regarding quality of the goods and the money liable to be paid by the respondent was pending for consideration with the applicant even before the statutory notice issued by the applicant and that it is a genuine dispute which according to us comes under the purview of section 5(6) of I B code. 13. In a similar case filed under section 9 of I B Code, (Mobilox Innovations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puting the liability to pay the amount demanded. It is not the merit of the dispute but whether the dispute was in existence on the date of issuance of the demand notice is to be considered in a case of this nature that is what we understood from the above said judgment of the Hon ble Supreme Court. It is good to read Paras 40 and 45 to 47 of the Judgment of the Hon ble Supreme court in the above referred case. It read as follows:- 40. it is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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