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TMI Blog2019 (5) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, rejected. - CP (IB) No.200/Chd/Hry/2018 - - - Dated:- 20-2-2019 - MR R. P. NAGRATH, MEMBER (JUDICIAL) For The Petitioner : Mr. G. S. Sarin, Practising Company Secretary For The Respondent : Ms. Prena Arora, Advocate, Mr. Jaspal Singh Pannu, Advocate And Mr. Ankit Juneja, Advocate JUDGMENT This petition has been filed by M/s Inqnest Marketing Solutions Pvt. Ltd., as operational creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the Code ) for initiating Insolvency Resolution Process against the respondent-corporate debtor. This application has been filed by the operational creditor as per Form 5, as prescribed in Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ). 2. The petitioner-company passed a Resolution dated 18.06.2018, deciding to initiate the insolvency proceedings against the respondentcorporate debtor under the provisions of the Code and the rules framed thereunder. Copy of the Resolution is at Page 130 of the paper book. The Resolution a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both the parties agreed on the rate card and also on all the subsequent occasions during the course of transactions. Based on the above approved rate card, the operational creditor raised 29 invoices, out of which 13 invoices have been paid by the respondent-corporate debtor. The details of the paid invoices from 26.09.2017 to 04.10.2017 are at Annexure A-2 (Colly). Copies of the e-mail exchanged between the parties are at Annexure A-1 (Colly). 7. It is further stated that the respondent-corporate debtor did not pay for rest of 16 invoices and started demanding reduced rate card retrospectively. The respondent-corporate debtor rather started claiming refund of some amount which was without any basis. The unpaid invoices from 04.10.2017 to 13.12.2017 are at Annexure A-3 (Colly). 8. It is further stated that despite repeated requests and reminders, the respondent-corporate debtor has chosen not to pay the outstanding amount on one pretext or another. This is contrary to the own instructions and admission of the corporate debtor. Since no payments were forthcoming from the corporate debtor, the petitioner issued demand notice dated 03.04.2018 in Form 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar trade business. The quotations furnished by the other vendors have also been annexed. It is further stated that the parties never finalized the rates nor entered into any formal agreement even after several reminders sent on different occasions. Out of the total invoices, the operational creditor sent invoice Nos. 1 to 6 collectively on 26.09.2017, invoices Nos. 7 to 14 on 04.10.2017, invoice Nos. 15 to 19 on 20.11.2017 and invoice Nos. 20 to 25 on 09.12.2017 collectively. Invoice No. 30 was sent to the corporate debtor on 29.03.2018, copy of which is Annexure R-4, attached with the reply. 12. Further, the respondent-corporate debtor had issued a debit note dated 31.03.2018 to the operational creditor for a sum or ₹40,85,160/- against invoice No.100010001 to invoice No.100010013, which is borne out from the ledger account, being maintained by the corporate debtor attached at Annexure R-5. 13. According to the calculation of the respondent-corporate debtor, there was only a balance amount of ₹6,99,150/- and ₹18,87,230/- for the aforesaid invoices and the rest of the invoice from 100010014 to 100010030. Therefore, after adjusting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the rate and subject to the verification of volume delivered. 20. Copy of e-mail dated 16.03.2018 sent by the respondent to petitioner was enclosed with the reply to the demand notice and the same has been attached with the documents filed by the petitioner, as at Page 110 of the paper book. It is stated in this e-mail that there has been a continued correspondence and personal meetings and discussions held between the parties on the issue. The respondent in this e-mail communicated to the petitioner about the discussion and negotiation undertaken over the course of February and first week of March, 2018. It is also stated in this e-mail that the invoice dated 05.02.2018 is for the month of December, 2017, sent in the midst of discussion which along with the other invoices remains to be verified. It is further stated that the rates have not been reduced in the recent invoices as well. It is further stated in the e-mail dated 16.03.2018 as under:- xx xx xx xx xx Consequent to our meeting dated 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx 21. The e-mail dated 16.03.2018 is in response to the e-mail sent by the petitioner dated 26.01.2018 which is a trailing e-mail at page 112 of the paper book. The petitioner has stated in this e-mail dated 26.01.21018 as under: - over the last few weeks, I have personally gone through the entirety of 1000+ mail correspondence between Koovs and Inqnest and I am shocked at the complete fabrications and outright lies that have been presented in your latest mail, all of which we deny at the outset. It may please be recalled that all our invoices are based upon rates duly acknowledged by your company against the work orders while releasing our bills for the months of August and September 2017. Your mail completely establishes the fact that you deliberately withheld our subsequent invoices raised for the work done by us with a view to illegally deny our bonafide payments. This is completely clear from your offer to pay us 1/10th of the invoiced amount and a completely fictional narrative of ongoing rate negotiations between our organizations taking place between the months of August and November presented by yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Civil Court. Simply, because some of the invoices paid by the respondent cannot rule out the possibility of a dispute in respect of unpaid invoices where the dispute was raised way back on 03.01.2018, much before the sending of the demand notice under Section 8 of the Code. 24. The principle of law on the subject has been well settled by the Hon ble Supreme Court in (2018) 1 Supreme Court Cases 353 ; Mobilox Innovations Private Limited Versus Kirusa Software Pvt. Ltd. and it was held by Hon ble Supreme Court as under:- It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application Under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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