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TMI Blog2018 (12) TMI 1686X X X X Extracts X X X X X X X X Extracts X X X X ..... s followed in the normal course of business - the issues raised by the respondent cannot be considered as sufficient material to qualify as a 'dispute'. The Tribunal is inclined to admit this application and accordingly initiate the process of CIRP of the Respondent - Application stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. - C.P. No. IB-330/(ND)/2018 - - - Dated:- 17-12-2018 - SHRI R. VARADHARAJAN, MEMBER (JUDICIAL) AND DR. V. K. SUBBURAJ, MEMBER (TECHNICAL) For The Operational Creditor : Mr Karunesh Tandon, Advocate For The Respondent : Mr Mehta And Kapoor Law Firm ORDER 1. This is an application filed by M/s Jay Ace Technologies Ltd. against M/s Micromax Energy Ltd., the Respondent company seeking to initiate Corporate Insolvency Resolution Process ( CIRP ) u/s 9 of the Insolvency and Bankruptcy Code ( the Code ) for the alleged default on the part of the Respondent in clearing the dues of the Applicant of ₹ 88,48,294/- towards the supply of batteries effected by the Applicant to the Respondent. The facts leading t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80/- was due and payable against 17 invoices and further undertook to pay the aforesaid due amount in terms of the schedule of payment mentioned in the mail by the Respondent. v. It is evident to point out here that despite acknowledging the balance payment of ₹ 2,73,94,780/- and undertaking to release the admitted payment in terms of the schedule, the Respondent paid an amount of ₹ 1,84,41,385/- and did not take any further steps to release the balance ledger amount of ₹ 88,48,294/- only. No further payment was released by the Respondent arising out of invoices bearing No. RKE1718/1000456, RKE1718/1000457, RKE1718/1000460, RKE1718/1000466 and RKE1718/1000467 and same fact has also been certified by the bankers of the Applicant in its certificate that no payment after 24.11.2017 has been received by the Applicant from the Respondent. vi. Thereafter, the Applicant on account of the default in the admitted payment of Respondent, issued a demand notice dated 04.01.2018 under Section 8 of the Code to the Respondent demanding an unpaid debt of ₹ 88,00,000/- along with the interest of ₹ 2,09,043/- against the actual due amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tteries within one year, whereas the batteries have been sold for warranty of two and three years. As such ultimately it is the Applicant, who has to pay amount to the Respondent. iii. It is worth to state that as future business transaction with the Applicant was stopped after October, 2017 and stock of product of the Applicant was lying with the Respondent, in the month of November, 2017, the Applicant was specifically informed that if the Applicant does not take back the stocks lying in the godown of the Respondent a sum of ₹ 60 lakhs shall be withheld till the warranty period of the batteries got over. Only after this communication the balance amount of ₹ 54,00,000/- through cheque was released to the Applicant, which was duly received and encashed by the Applicant. Hence there no question of claiming the concerned amount arises. 3. The Applicant has filed the rejoinder to the points raised by the Respondent in which it has refuted the reply filed by the Respondent as follows: i. A perusal of e-mail dated 03.11.2017 makes it clear that the balance amount of ₹ 2,73,94,780/- was confirmed by the Respondent without poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of the tax extended by the Central Government to the manufacturing unit/Applicant. 4. We have perused the documents filed by both the parties and heard the arguments of both sides at length. In the instant case the Respondent has confirmed the dues to be paid to the Applicant as ₹ 2,73,94,780/- in email dated 03.11.2017 and has also sent a tentative schedule for clearing the dues by email. The respondent has paid the amount as per the schedule up to 05.12.2017 and the amounts due to be paid on 15.12.2017 and 20.12.2017 amounting to ₹ 88,48,294/- were not cleared. The reasons quoted by the Respondent for not clearing the dues are as discussed in the earlier paras. 5. The issue to be decided is whether there is any dispute raised by the Respondent regarding the supplied effected by the Applicant. While settling the invoices raised by the Applicant the Respondent has never deducted any amount on quality considerations in the previous transactions. Even while confirming the dues on 03.11.2017 by way of email the Respondent did not raise quality problems on the materials supplied by the Applicant. Only on 23.11.2017 the details of wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent including execution of any judgment, decree or order in any Court of law, Tribunal, arbitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the respondent any of its assets or any legal right or beneficial interest therein; c. Any action to foreclose, recover or enforce any security interest created by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 7. However, during the pendency of the moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder: (2) The supply of essential goods or services to the respondent as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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