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TMI Blog2018 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... - 500082. The corporate debtor is engaged in the real estate business. (3) It is averred that during the course of business, Corporate Debtor placed three purchase orders dated 05.04.2013, 29.01.2013 and 12.04.2013 with the Operational Creditor for supply of TMT to the Corporate Debtor to the tune of Rs. 1,62,36,212/- and raised invoices to the tune of Rs. 1,64,44,016/-. It is the case of the Operational Creditor that the representative of Corporate Debtor has acknowledged the receipt of the material and affixed its stamp and signature on the delivery challan. (4) It is also averred that a sum of Rs. 1,26,67,412/-was paid to the Operational Creditor on various dates until 08.02.2017 and Rs. 37,76,604/- is outstanding due to the Operational Creditor. It is the case of the Operational Creditor that the Corporate Debtor was under the obligation to clear the amount as per terms of supply. It is further averred that the last payment amounting to Rs. 5,00,000/- was made on 08.02.2017 after 45 months of supply of the material, which was on 07.05.2013. It is the case of Operational Creditor that four cheques were issued on different dates that too after 25 months of last supply of mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take back the defective material. It is also contended that the defective material was not at all used by the Corporate Debtor and the Operational Creditor has not taken back the defective material despite repeated requests. (3) It is also alleged that representative of the Petitioner Company instead of settling the account with regard to defective material, pick up quarrel with the Corporate Debtor Company employees and also warned of dire consequences. (4) It is also the case of the Corporate Debtor that Corporate Debtor was forced to pay the entire amount of the invoices raised by the Petitioner Company including transportation and labour charges. It is contended that the Petitioner raised invoices to the tune of Rs. 1,12,85,423/- in respect of purchase order dated 12.04.2013 of Rs. 1,12,65,345/- and the entire amount of the invoices raised was already paid to the Operational creditor. (5) It is contended that post-dated cheques were issued as security by the Corporate Debtor and were not retuned despite receiving the entire payments. Further, the Petitioner never deposited the cheques with their bankers as it was never issued for the purpose of any payment, but for securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst Corporate Debtor by the Operational Creditor. Prior to filing of Petition by Operational Creditor, a demand notice was issued to the Corporate Debtor. The demand notice was served on the Corporate Debtor. There was no response to the Demand Notice. The Corporate Debtor did not raise any dispute. Only after Application was filed, the Corporate Debtor came forward with a plea of discharge. However, burden is on the Corporate Debtor to prove discharge. If really Corporate Debtor was not liable to pay any operational debt to the Operational Creditor then what prevented Corporate Debtor to raise dispute prior to demand notice. 10. Operational Creditor relied on invoice copies for supply of goods to the Corporate Debtor. It is very interesting to note that Corporate Debtor did not raise any dispute with regard to supply of goods as per purchase order. It is further interesting to note, the Corporate Debtor has alleged in the counter that there was an understanding between the Corporate Debtor and Operational Creditor for supply of TMT Iron Bars in good condition. The contention of the Corporate Debtor that TMT bars supplied was not in accordance with specifications. The goods suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion to give cheques in the year 2015 as the security for the goods supplied in 2013. It shows the fallacy of contention of the Corporate Debtor that cheques were issued as security. There is truth in the contention of the Operational Creditor that the cheques were issued towards payment but cheques were not honoured. Probably necessary funds were not made available in encashing the cheques. Therefore, Operational Creditor cannot utilise the cheques. 13. The fact that cheques were given is not in dispute. It goes without saying that the cheques were issued as there was outstanding operational debt payable by Corporate Debtor. There is no other reason to give cheques to the Operational Creditor except towards payment of balance. This lends credence to the contention of operational creditor that Corporate Debtor committed default in paying the balance of operational debt. Annexure-2 consists of invoices at pages 15-23 of the Petition. The invoices are raised in the name of the Corporate Debtor staring from 20.04.2013. Annexure-3 is the particulars of unpaid operational debt. The Operational Creditor also relied on the certificate issued by NESL which is marked as Annexure-4. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor. 17. The Operational Creditor filed additional documents dated 23.07.2018. The Operational Creditor filed reconciliation statement shown as Annexure-1 certified by CA. The total sales and payment commencing from 31.03.2013 to 24.04.2014 are furnished. The latest account from 01.04.2017 to 31.01.2018 is also furnished and the balance payable amount is Rs. 37,76,604/- without adding interest. 18. The Operational Creditor is further able to establish that Corporate Debtor gave purchase order No.4 dated 29.01.2013. The second purchase order No.9 is dated 05.04.2013 and 3rd Purchase Order No.9 is dated 12.04.2013. Whatever material supplied to the Corporate Debtor under these three purchase orders and details of invoices, delivery challans and amount involved etc are furnished. The invoice and delivery challans for purchase order Nos. 4, 5 & 9 are all furnished. Thus, Operational Creditor is able to establish total transactions under various Purchase Orders at Rs, 164,44,016/- and amount paid by Corporate Debtor under various invoices was totalling at Rs. 1,16,67,412/- and balance is Rs. 37,76,604/- and if interest @ 24% is added, the total amount due was Rs. 79,20,558 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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