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TMI Blog2019 (3) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... r or Petitioner, against Crest Steel & Power Private Limited (CSPPL), Corporate Debtor, to initiate Corporate Insolvency Resolution Process (CIRP) against Corporate Debtor on the ground that the Corporate Debtor defaulted in making payment of $1,453,228.40/- inclusive of interest as on 31.12.2018. 2. The Petitioner is a company registered under the laws of Switzerland and is engaged in the business of providing services such as Investment Banking, Private Banking, Asset Management etc. The Petitioner provided credit facility of upto $20,000,000/- to Glints Global General Trading LLC (Glints) vide Credit Facility Agreement dated 12.03.2013. Pursuant to the said agreement, Glints, as a security, executed an Assignment of Claims Agreement &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has sent a notice of claim dated 19.05.2014 to the Corporate Debtor demanding the due amount under the invoice raised by Glints, it being payable to the Petitioner in lieu of the Security Agreement. Again on 03.06.2014 the Petitioner sent a facsimile message (fax) to the Corporate Debtor requesting to confirm if they have made the payment. The Petitioner stated that it did not receive any reply to any of its communications sent to the Corporate Debtor. Eventually, on 20.06.2014 the Petitioner sent a legal notice to the Corporate Debtor demanding payment of the due amount under the invoice. 7. The Corporate Debtor replied to the legal notice of the Petitioner stating that they were not aware of the fact that the goods were financed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor on or before 31.08.2014. 10. Eventually on 29.08.2014, the Petitioner sent an e-mail acknowledging the $1,000,000/- received from the Corporate Debtor and demanding the balance remaining. 11. On 01.09.2014 the Corporate Debtor sought another four-day deferment, till 09.09.2014, for payment of the balance amount of $4,039,795/- in lieu of holidays for festival of Lord Ganesha. 12. On 02.09.2014 the Petitioner sent a notice objecting to the further deferment sought by the Corporate Debtor and levied interest at 18% p.a. from 03.06.2014. 13. The Corporate Debtor on 19.09.2014 issued a letter to the Petitioner again raising the issue of poor quality of material supplied and it being not as per terms of the order. It also informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance paid by the Petitioner and the agreed deduction of $25/MT as the compensation in lieu of the loss suffered due to poor quality of the goods supplied. 17. The Corporate Debtor in its Affidavit in Reply has stated that the petition should not be admitted because it has disputed both the quantum as well as right of the Petitioner to claim the amount. The dispute regarding the quantum is in lieu of firstly, the refusal of the Petitioner to deduct 10% advance paid to the Glints. Secondly, the Petitioner has not deducted $25/MT from the invoice amount which was agreed to be deducted on account of poor quality of the goods supplied by Glints. It is stated that the quality issue with the goods supplied was communicated to the Petitioner in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor, the Petitioner contends that there is no mention of such an advance either in the Sales Contract dated 30.01.2014 or in the Commercial Invoice dated 03.03.2014 thus no deduction as claimed can be done. 21. Further, since the invoice itself mentions the fact of assignment of the invoice amount to the Petitioner, it was duty of the Corporate Debtor to pay the advance, if any, to the Petitioner and not to Glints. The Petitioner has also denied to any deductions agreed or allowed by Glints as the documents annexed to the petition would sufficiently prove that the quality and quantity of the goods supplied are in accordance with the Sales Contract and any dispute regarding the quality of the goods is not maintainable. 22. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions under section 9 of IBC is well settled by the Hon'ble Supreme Court in its judgment in Mobilox Innovations Private Limited vs. Kirusa Software Private Limited, (2018) 1 SCC 353 and K. Kishan vs. M/S Vijay Nirman Company Pvt. Ltd., Civil Appeal No. 21824 Of 2017 order dated 14.08.2018. The Adjudicating Authority has only to see whether the said debt can be said to be disputed and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence without examining the merits of the dispute. If the Adjudicating Authority is of the opinion that there exists a dispute to the extent as aforesaid then it has to reject the petition. 28. In the present petition, the Corporate Debtor has communicated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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