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TMI Blog2017 (11) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code, vide resolution dated 27.05.2017 Annexure VII. Vide the same resolution, the company has authorised M/s Saxena and Saxena Law Chambers, Advocates to represent the company in the application with further authority to issue legal notice to the Corporate Debtor in terms of Section 8 of the Code. 3. Before filing the application in Form No.5, the petitioner sent a demand notice dated 27.05.2017 in Form No.3 as prescribed in Rule 5 of the Rules. This notice was sent by speed post on 29.05.2017. Copy of the demand notice along with the documents annexed thereto, is at Annexure I (Colly) pages 24 to 463 of the paper book. The documents attached with the demand notice are the contract/agreement; copies of the three supplementary contracts/agreements between the parties; copy of the ledger account of the Respondent-Corporate Debtor being maintained in the books of account of the petitioner and copy of the computation chart for calculation of the default. The demand notice was also sent to the Respondent-Corporate Debtor vide email dated 30.05.2017 Annexure II (Colly). 4. The service of demand notice is not a disputed fact and the respondent rather sent reply to this notice Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly paid to the petitioner. This email is said to be an afterthought and frivolous as they never raised any such issue regarding the double payment for single invoices in reply to the notice issued under the Code. It is denied that the respondent-corporate debtor has paid anything twice the amount of any of the invoice. Copies of the emails exchanged between the parties are at Annexure VI (Colly). 8. The total amount of debt is stated to be Rs. 2,18,12,493/- and it fell due on 31.03.2011, but the last payment was received on 18.05.2017. The petitioner has also relied upon the copy of ledger account of the respondent being maintained by the petitioner from the years 01.04.2010 to 31.08.2017 which is part of the document Annexure I. 9. The petitioner attached the copy of the certificate from the Financial Institution i.e. its Bank in order to comply with the requirement of Section 9 (3) (c) of the Code. 10. The petitioner has also proposed the name of Mr. Romesh Chander Sawhney, Resolution Professional to act as Interim Resolution Professional, who has filed the written communication in Form No.2 as Annexure XI. The perusal of the written communication shows that it conforms to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es mentioned in the list Annexure C. Rest of the invoices attached with Annexure X of the petition, the same was never received nor payable as per the agreement between the parties. It is stated that the work was concluded in the year 2014 and the invoices raised subsequent to that, are afterthought. Many of the invoices claimed in this case are issued on the same day i.e. 01.03.2017, which is against the terms of the agreement. 15. Regarding the amount received after service of demand notice to the tune of Rs. 6,969/-, it is averred that this amount was released only on account of some accounting error on the part of the Financial/Accounting Team of the respondent and not to honour any of the disputed invoices. It is denied that the respondent is liable to pay the amount claimed. Rather, the petitioner is to pay the amount of Rs. 4,14,949.09/-. 16. The petitioner has also filed the rejoinder. I have heard the learned counsel for the parties and perused the record quite extensively with their able assistance. 17. The first contention of learned counsel for the respondent is that the certificate from the Financial Institution is not in conformity with the requirement of Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of a representation or warranty; 22. The Hon'ble Supreme Court held in "Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Limited" Civil Appeal No. 9405 of 2017, MANU/NL/0027/2017, as under:- " 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 an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is merely bluster. However, in doing so, the Court does not need to be satisfied that the defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which shows that it pertains to invoice dated 26.02.2015. At page 843 is the work completion certificate dated 27.01.2015 and at page 844 dated 23.02.2015. This seems to be a material inconsistency. 26. Similar discrepancy has been pointed out with respect to invoice dated 01.03.2017 at page 848. The purchase order date is 25.08.2014 and payment term of 30 days. The supporting documents with this invoice shows that it refers to invoice dated 26.02.2015 at page 849, but the work completion certificate attached at page 850 is dated 27.01.2015 and at page 851 date is 23.02.2015. 27. Reference is also made to the invoice at page 855, dated 01.03.2017 with purchase order dated 25.08.2014 with the same term of payment by 30 days. The document attached with it shows that the invoice date is 26.02.2015, but invoice attached at page 855 is dated 01.03.2017. At page 857 is the work completion certificate dated 27.01.2015, but at page 858, the work completion certificate is dated 23.02.2015. 28. These are three of the examples referred to by the learned counsel for the respondent out of so many invoices dated 01.03.2017 as relied upon by the petitioner. 29. At page 803 of Annexure VI is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and invoices worth Rs. 34.68 lacs were adjusted against the advance payment. It was further stated that invoices worth Rs. 22.32 lacs were rejected and invoices for Rs. 1.05 lacs were not submitted. The petitioner responded to this email and after more than 1 ½ years, vide email dated 11.08.2017 as at page 626 claiming outstanding amount of Rs. 2,18,19,462/-. 34. In view of the facts discussed above, there is clearly an existing dispute between the parties disentitling the petitioner to an order of admission. 35. The other aspect would be whether the demand notice sent by the petitioner is valid in the eyes of law. There are 47 invoices dated 06.03.2017 out of which, only 16 invoices were annexed with the demand notice. Learned counsel for the respondent submitted that the total value of the invoices of the year 2017 i.e. 01.03.2017 is worth Rs. 1,41,98,775/-. 36. Learned counsel for the petitioner, however, submitted that the notice to the respondent has been sent in Form No.3 and sending of all the invoices was not required. It was contended that the petitioner's case is supported by the ledger account, copy of which was sent to the respondent also, I am unable to agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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