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TMI Blog2019 (5) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusive of Service Tax) are allegedly pending, were raised by the Operational Creditor on 06.12.2014 and followed up through various emails subsequently. It is clear that there is an existing of dispute (default) in this case prior to the date of raising of Invoices by the Operational Creditor. The impugned Invoices are dated 06.12.2014 whereas the communication of defects from the Respondent was in October, 2014. Therefore, it is an undisputed fact that there is an existing dispute in this matter. The petition does not deserve admission and is dismissed. - C.P.(IB)-1440/(MB)/2017 - - - Dated:- 5-2-2019 - Shri M. K. Shrawat, Member (Judicial) For The Petitioner (s) : Mr. Sariq Nachan, Counsel, a/w. And Nitesh, Advocate, i/b. Latesh Fariya, Advocate For The Respondent (s) : Mr. Shyam Kapadia, Counsel, a/w., Ms. Henna Daulat, a/w. And Ms. Anaisha Zachariah, i/b. Crawford Bayley Co. ORDER Per M.K. Shrawat, Member (Judicial). 1. A Petition u/s.9 has been submitted on 26.09.2017 by the Operational Creditor M/s. APDAX Construction, against the Corporate Debtor West Coast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43,37,621 3. The Petitioner submitted that the amount received from the Corporate Debtor against the Invoices issued to them on 06th December 2014 includes the Service Tax and TDS. The Operational Creditor further submitted that despite timely reminders, only repeated assurances were given by the Corporate Debtor, however, deliberately failed to pay a sum of ₹43,37,621/-, even though no dispute was ever raised. 4. The Petitioner has submitted as evidence, Form 26AS for the Financial Year 2014-15 from Income Tax Department to establish that the Corporate Debtor had actually deducted/ credited TDS amount of ₹1,35,945/- u/s. 194C of the Income Tax Act, against the total amount of ₹67,97,256/- paid to the Operational Creditor. 5. It is worth to mention that there was a proposal to shift the Registered Office of the Corporate Debtor from Maharashtra State to State of Gujarat as approved by Special Resolution passed in accordance with Section 114 of the Act in its Extra Ordinary General Meeting held on 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayments. However, the payments were not made by the Corporate Debtor. Relevant portion of some of the emails are reproduced below:- Email dated 26.03.2015 Dear Kamleshji, All these bills of material suppliers were checked verified, it s been due since long, need to be paid off. Had followed it up in past with Hemant too, but nothing has been paid since long. You haven t send us your new requirements as discussed earlier. Being year end all the suppliers are following me at regular intervals. I need to give them clear answers. I even what s applicant you but never got any answers. Kindly advice. Regards, Apurva Shah Email dated 02.04.2015 Dear Mr. Kamlesh, Gentle reminder to release the long pending dues of the vendors, contractors ourself for the material services provided for your office renovation works. Kindly revert. Regards, Apurva Shah Email dated 22.06.2015 Dear Sir, Kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mails dated 08.10.2014; 14.10.2014, 27.10.2014; 28.10.2014 purportedly sent by them to the Operational Creditor citing certain defects in the work done by the Operational Creditor, as under :- Email dated 08.10.2014 :- Dear Zubil, As we are using the cabins, it is becoming more evident that using the cabins in privacy is impossible. The voice travel between cabins is unacceptable. The partitions are not designed/executed correctly. Regards/ KNG Email dated 14.10.2014 :- Dear Apurva/Zubil, Kindly note that it is impossible to work in my cabin with voice travelling from my adjacent cabin. You will have to rectify this mistake at the earliest. R/KG Email dated 27.10.2014 :- Dear Apurva, Kindly confirm the final dates for completing the pending works at our office in Lotus Corporate Park. You are aware that we shifted to the office over a month ago. We are going thru intense hardships in functioning from this office. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Considering the totality of facts and circumstances of the case, although the Registered Office of the Corporate Debtor allowed to be changed from Mumbai to Gujarat in Order dated 30.01.2017 of the Registrar of Companies, Mumbai, the Order specifically mentioned that, quote, (b) Further as regards dispute between the Company and M/s. APDAX Constructions, there will be no jurisdictional change for initiating any legal action, even after change in registered office of the Company. Accordingly, the impugned Petition deserves to be adjudicated in Mumbai. 11.1. From the facts and circumstances mentioned supra, at the outset it is worth to mention that since this is a Petition under Section 9, therefore, the element of pre-existence of Dispute has to be examined before Admission of the Petition. It is an ascertainable position, as is emerging from the evidences on record, that all the six Invoices against which payments of ₹72,83,566/-(inclusive of Service Tax) are allegedly pending, were raised by the Operational Creditor on 06.12.2014 and followed up through various emails subsequently. 11.2. In respect of the issue the Petitioner has su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard for a small amount of say, two lakhs of rupees, cannot possibly jeopardize an otherwise solvent company worth several crores of rupees. Such a company would be well within its rights to state that it is challenging the Arbitral Award passed against it, and the mere factum of challenge would be sufficient to state that it disputes the Award. Such a case would clearly come within para 38 of Mobilox Innovations (supra), being a case of a pre-existing ongoing dispute between the parties. The Code cannot be used in terrorem to extract his sum of money of Rs. Two lakhs even though it may not be finally payable as adjudication proceedings in respect thereto are still pending. We repeat that the object of the Code, at least insofar as operations credits are concerned, is to put the insolvency process against a corporate debtor only in clear cases where a real dispute between the parties as to the debt owned does not exist. 11.6. As a consequence, this Petition does not deserve Admission. However, the Petitioner is at liberty to approach any other Forum if deemed fit for any relief if admissible under any other provisions of Law. Accordingly, this CP.(IB)-1440/(MB)/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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