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TMI Blog2018 (5) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the dispute was vague and motivated to evade the liability. The objections to the claim put forward by the corporate debtor being not sustainable and since the ingredients as provided under section 9(5) (a to e) are satisfied by the applicant for admission of this petition under section 9 of I&B Code it deserves to be admitted. Accordingly, the application is hereby admitted for initiating the Corporate Resolution Process and declare a moratorium and public announcement as stated in Sec.13 of the IBC, 2016 - CP (IB) NO. 699/KB/2017 - - - Dated:- 7-2-2018 - MR. JINAN K. R., J. For The petitioner : Mr. Rohit Jalan, Advocate For The Respondent : Ms. P. Banerjee, Advocate, Mr. A. Mukherjee, Advocate And Mr. Debsoumya Basak, Advocate ORDER Per : Jinan K.R., Member (Judicial) 1. The petitioner has filed this application under Sec.9 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as I B Code) 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to Adjudicating Authority Rules, 2016) for initiation of corporate insolvency process against corporate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld and delivered to the corporate debtor along with interest @18% p.a being the contractual rate of the interest from the date of the invoice till actual payment. The said goods was duly received, accepted and utilized by the corporate debtor. No goods or the parts of the goods were ever returned to the operational creditor by the corporate debtor whatsoever. 7. Operational creditor has further stated that the corporate debtor did not pay the outstanding dues in spite of receiving demand notice dated 29-08-2017. A copy of the demand notice is annexed with the application as Annexure P6. The petitioner has stated that total outstanding dues in the notice was 62,12,142/- (inclusive of interest) occurred from 29-08-17. A copy of the statement of account from Bank/Financial Institutions showing the due is annexed with the application and marked as Annexure P9. 8. Even after receipt of the demand notice, the corporate debtor failed to make payment the outstanding dues. Therefore, the petition was filed for initiation of corporate insolvency process against the corporate debtor. 9. The applicant has annexed along with the petition copy of the demand notice issued under I B Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a dispute of the unpaid part of the debt. The applicant has stated in the affidavit that corporate debtor has failed to bring to the notice of the operational creditor existence of a dispute or the pendency of the suit or arbitration proceedings filed before the service of the demand notice. Operational creditor has further alleged that even 10 days after the date of delivery of the demand notice, he has not received any payment or a notice of dispute regarding the pending amount from the corporate debtor. 14. The operational creditor also filed a rejoinder to the reply affidavit filed by the respondent that the entire story of corporate debtor is false as the corporate debtor did not annex any single document so as to show that the corporate debtor informed the operational creditor that goods have been rejected by RIL or calling upon the operational creditor to take back the goods rather he has accepted the goods without any objection or demur. There was no written purchase order and the document annexed to the reply does not show that the same was ever send to the email of the operational creditor or not bears any seal of the operational creditor. 15. The operational cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining Invoice No., Date, Challan No. Date, Recd Date, Material Description, Material Value, Tax payment, 9 mm/550 plywood, 1 6mm/160 and Grand Total of ₹ 75,15,933,28. F. Satement showing that the Corporate Debtor has altogether paid ₹ 31,61,507.00 to the operational creditor against the supply which contains an amount of ₹ 9,43,638.95 against the said 9 mm plywood supplied in the 1st invoice and the rest ₹ 22,17,866.25 was paid against the supply of 16 mm plywood. Upon the above said contentions corporate debtor prays for rejection of the application. 20. Heard arguments of Learned Counsel on both side at length. Upon hearing the argument and considering the contentions and on perusal of the records the point that arise for consideration is: (1) Whether the respondent succeeded in proving existence of a genuine dispute as alleged in the reply and whether there is existence of a dispute between the parties. Operational creditor has filed this petition under Sec.9 of the I B Code, 2016. In the Company Appeal No.9405/2017 Kirusa Software Pvt. Ltd. vs. Mobilox Innovations Pvt. Ltd. [2017]140 CLA 123 (SC) Hon'ble SC has held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 9 mm was of inferior quality and hence there is no liability to pay the amount demanded by the applicant is found devoid of any merit. 24. At this juncture learned counsel for the corporate debtor relied upon an E-mail Annexure C for stressing an argument that there exist a preexisting dispute regarding the quality of goods received by the corporate debtor. It has been admittedly received by the applicant on 31-08-2017. It is an e-mail informing the applicant that 9 mm plywood supplied does not confirm IS standard and that it would be rejected by RIL who the customer of the corporate debtor is if the test result is given to RIL. In reply to the said mail the applicant replied that it may be due to nonconformity in regards the preservative chemicals and so applicant has send new samples for their testing. There is no further communication in this regard. So here in this case there is nothing to prove that there exists a genuine dispute regarding the goods purchased by the corporate debtor. It has come out in evidence that the goods delivered to the corporate debtor were received by the corporate debtor without raising any objection. The test result seen obtained by the corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; 2. Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 3. Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); 4. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. 29. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. 30. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 31. The order of moratorium shall affect the date of such order till the completion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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