9911796707
TMI Blog2019 (9) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. subsequent to the Corporate Debtor raising dispute in respect to the invoices 20.02.2016 and 17.03.2016, the dispute is in existence between the parties in respect to the quality of clinker supplied through invoice dated 17.03.2016 which is part of the claim amount. Since this Bench cannot segregate the claim as to how much amount is disputed and as to how much amount not disputed. It is the look out of the Operational Creditor to make a claim to the extent that has not been disputed by the Corporate Debtor. If at all payment of undisputed claim is dependent upon dispute in respect to the material supplied, then also it is a point to be looked into whether dispute is in existence or not. However, in the present case, the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnishing a sum of ₹ 1,32,14,000 to the Corporate Debtor as Earnest Money Deposit and Security Deposit which is refundable on the date of expiry/termination of the agreement. In pursuance of this agreement, the Operational Creditor supplied Clinker to the Corporate Debtor but whereas the Corporate Debtor has failed to pay towards the supply of Clinker against the invoices issued for the amounts as mentioned below: Invoice Number 1002 12.03.2016 US$ 1,33,782.40 Invoice Number USA/TCL/16-17 19.10.2016 US$ 8,377.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication as well but not made the full payment which is due and payable by the Corporate Debtor, therefore the Operational Creditor counsel has sought for admission of this Company Application by initiating CIRP against the Corporate Debtor. 4. As against this Company Application, the Corporate Debtor counsel has filed written submissions stating that by virtue of the agreement entered between them, the Corporate Debtor received two consignments of While Clinker by raising invoices USA/TCL/2016/01 dated 20.02.2016 and USA/TCL/2016/02 dated 17.03.2016. Upon receipt of the aforementioned supplies, when the Corporate Debtor noticed that the supplied clinker was different from the sample exhibited to them and that the supply be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the invoice amounts aforementioned. In this notice, it has been stated that the shipments made 12.03.2016 onwards were made on believing the assurance of the Corporate Debtor that it would pay arrears so that it could run its business without interruption to its production. It has also been further stated that the Operational Creditor has constantly pressed for the payment of the outstanding bills against the total amount US$ 3,02,160 along with interest 18% per annum. Since the agreement executed for the period from 21.01.2016 to 21.01.2017 having expired, the Corporate Debtor is also demanded to pay the EMD of ₹ 25,00,000 and SD of ₹ 1,32,14,000 paid by the Operational Creditor by stating that in the event the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the correspondence between the Operational Creditor and the Corporate Debtor reveals that there has been dispute between the parties with regard to supply of clinker by invoices dated 20.02.2016 and 17.03.2016, out of these two invoices, the invoice dated 17.03.2016 for an amount of USD 1,33,782.40 is being included in the claim amount by giving Section 8 notice on 13.11.2017 i.e. subsequent to the Corporate Debtor raising dispute in respect to the invoices 20.02.2016 and 17.03.2016, therefore we are of the considered view that dispute is in existence between the parties in respect to the quality of clinker supplied through invoice dated 17.03.2016 which is part of the claim amount. 9. As to the argument of the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in between the invoice dated 20.02.2016 supplying 540 metric tonnes and the invoice dated 17.3.2016, the invoice raised on 17.03.2016 obviously will become second invoice, which fact the Operational Creditor cannot disown because the operational creditor in the email dated 29.03.2016 revealed rejection of second shipment, that is through invoice dated 17.03.2016. 12. Giving reply or not giving reply to Section 8 notice is not mandatory to find out as to whether dispute is in existence between the parties. The mandate is, dispute shall be in existence as on the date of issuance of Section 8 notice. Here in this case, the notice was issued on 13.11.2017 whereas dispute was raised over this supply in the month of March 2016 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
