9911796707
TMI Blog2018 (9) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... or succeeds in establishing existence of a dispute between the corporate debtor and operational creditor regarding the quality of the goods and regarding the amount liable to be paid and, therefore, the application is liable to be rejected u/s. 9(5)(i)(a) and (d) of the I & B Code. Application rejected. - C.P. (IB) NO. 105/KB/18 - - - Dated:- 8-8-2018 - Shri Jinan K.R., MEMBER (J) For The Operational Creditor : Ajay Gaggan, Adv. and Ms. Rakhi Purnima Paul, Advocate For The Corporate Debtor : Anuj Singh, Adv., Ms. A. Khatoon, Adv., Ritoban Sarkar, Adv. and Avishek Das, Advocate ORDER 1. This is an application filed by M/s. Gandher Oil Refinery India Ltd./operational creditor u/s. 9 of the Insolvency and Bankruptcy Code, 2016 (In short, I B Code, 2016) for initiation of Corporate Insolvency Resolution Process (In short, CIRP) as against the M/s. Sapphire Equities Pvt. Ltd./corporate debtor alleging that ₹ 3,07,21,702/- (Rupees Three Crores Seven Lakhs Twenty One Thousand and Seven Hundred Two only) including interest @ 18% per annum from the due date of invoice till the date of payment due from the corporate debtor and despite demand the corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been admitted by the operational creditor and acknowledged in writing. The operational creditor also not released the entire consignment in favour of the corporate debtor. The operational creditor delayed issuance of the Delivery Order in favour of the corporate debtor as a result the buyers of the corporate debtor loss interest in the transaction with the corporate debtor. By reason of such delayed issuance of the Delivery Order the corporate debtor has suffered losses and damages. This had resulted in dispute and difference between the parties. (b) By reason of the quality dispute the buyers of the corporate debtor who had acquired the said goods simultaneously from the corporate debtor failed and neglected to make payment of the said goods to the corporate debtor. Therefore, the entire payment of the corporate debtor got struck. The loss suffered by the corporate debtor for this transaction is wholly attributable to the operational creditor as sub-standard goods were supplied by the operational creditor. This fact was dishonestly suppressed by the operational creditor. (c) In view of the dispute of the quality of the goods supplied, the corporate debtor is not liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on consideration of the contentions taken by both parties, the short point that arises for determination is whether the corporate debtor succeeds in establishing pre-existing disputes as alleged in the reply affidavit ? 7. The business transaction in between the operational creditor and corporate debtor is admitted. Ld. Counsel for the corporate debtor firstly submits that no reply to the demand notice sent by the operational creditor because the demand notice was not received by the corporate debtor. According to him only on perusal of the records produced before the Tribunal he came to know that demand notice allegedly sent by the operational creditor was not served upon the corporate debtor and thereby non-submissions of reply to the operational creditor is not fatal and according to him the operational creditor failed to prove statutory compliance u/s. 8(1) of the I B Code, 2016 and, therefore, the application is liable to rejected on that ground itself. 8. Secondly, he submits that since the supply of inferior quality of goods is admitted by the operational creditor the existence of a dispute regarding quality of goods stands established on the side of the corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....... Explanation. - For the purposes of this section, a demand notice means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred. 12. As per Section 9(3)(a) the operational creditor shall along with the application furnish proof of delivery of demand notice also. So proof of delivery of demand notice is one of the material documents to be produced along with the application by the operational creditor. So it is one among the requirements to be meted out by the operational creditor so as to enable the Adjudicating Authority to hold that the application filed under Sub-section (2) of Section 9 is complete. Therefore, a reading of Section 8(1) with Section 9(3)(a) it is understood that one of the requirements to be meted out by the applicant/operational creditor is proof of delivery of notice sent u/s. 8(1) of the I B Code, 2016. That requirement not at all meted out by the applicant/operational creditor in the case in hand. At the time of hearing I am inclined to grant time to produce proof. However, the Ld. Counsel for the applicant submits that he could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operational creditor to the corporate debtor is self explanatory as to the quality of the goods received by the corporate debtor. The date of reply of e-mail is 10th December, 2016, that means long before the date of issuance of the demand notice. The demand notice Annexure A to the application was issued on 03/11/2017. Neither in the demand notice nor in the application the operational creditor pleaded about the understanding and waiver of a portion of the amount, which according to the operational creditor, is liable to be paid by the corporate debtor. 15. According to the Ld. Counsel for the corporate debtor because of the supply of inferior quality of goods supplied by the operational creditor it has failed to pay their debt due to the operational creditor and thereby the corporate debtor was unable to pay all the debt and since the matter was amicably settled between the corporate debtor and operational creditor, the demand of ₹ 3,07,21,702/- is quite illegal and the corporate debtor is not liable for that amount. 16. According to the Ld. Counsel for the operational creditor the quality of the goods was diminished only because of the delay on the part of the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
