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TMI Blog2019 (3) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of dispute in relation to quality has also been brought forth by the Corporate Debtor to the Operational Creditor. Further going by Section 9(5)(2) of IBC, 2016, it is seen that under sub-clause (d) of clause 2 of sub-section 5 of Section 9 of IBC, 2016, an onus is placed on this Tribunal in view of the notice of dispute sent, if the dispute raised is not otherwise sham of illusory, to dismiss the petition. In view of the reach of the above said provisions and as rightly contended by learned counsel for the Corporate Debtor delineated and as held by the Hon'ble Supreme Court in Mobilox Innovations (P.) Ltd. case (2017 (9) TMI 1270 - SUPREME COURT OF INDIA) this petition is liable to be rejected - IB No. 20/9/JPR/2018 And TA No. 991201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition as filed by the petitioner in the capacity of an Operational Creditor shows that the claim amount had arisen by virtue of transaction as entered into between the parties for the supply of goods, being PVC pipes of different dimensions and for its manufacture, testing, supply and transportation by the Operational Creditor to the Corporate Debtor vide a purchase order dated 31.08.2017. As per the terms and conditions provided in the purchase order itself the value of the said purchase order is reflected as being ₹ 1,60,64,538/- inclusive of GST @ 18%. The terms and conditions of the purchase order also contains the clause relating to quality of the pipes to be supplied as per clause 18 of the said purchase order. 4. Reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the amounts will be released in relation to balance payment on a proportionate basis as and when the sectional testing is certified and paid by client. 5. An opportunity was granted to the Corporate Debtor to file its reply to the Company Petition and a detailed reply has been filed. Perusal of the reply shows that the primary defence which is being projected by the Corporate Debtor in order to stave off the claim of the Operational Creditor is on the basis of an existence of dispute and in this connection the oft quoted decisions of Mobilox Innovations Private Limited V/s Kirusa Software Private Limited (AIR 2017) SC 45320 is being relied on to contend that where there is an existence of dispute which is not illusory or sham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic Works Department as it will be blacklisted. The response of the operational Creditor was that it was prepared to offer indemnity in relation to quality, if the same is the apprehension, for specified number of years as sought for by the Corporate Debtor. 8. Be that as it may, the basic plea of the Corporate Debtor it is seen is of the plea of existence of dispute in relation to quality of materials supplied by the Operational Creditor, namely, PVC pipes. Both, from the perusal of the documents filed along with the application as well as reply of the Corporate Debtor, it is seen that prior to the sending of notice of demand under Section 8 of IBC, 2016 by the Operational Creditor to the Corporate Debtor, a communication has been exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 by the Operational Creditor, from the Corporate Debtor clearly shows that an issue of quality has been raised in view of the differing test reports. Further, by virtue of the notice of dispute as required to be sent under the provisions of Section 8 of IBC, 2016, under Section 8(2)(a) the existence of dispute in relation to quality has also been brought forth by the Corporate Debtor to the Operational Creditor. Further going by Section 9(5)(2) of IBC, 2016, it is seen that under sub-clause (d) of clause 2 of sub-section 5 of Section 9 of IBC, 2016, an onus is placed on this Tribunal in view of the notice of dispute sent, if the dispute raised is not otherwise sham of illusory, to dismiss the petition. In view of the reach of the above sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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