9911796707
TMI Blog2019 (9) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... lity - alleged default on the part of Operational Creditor - HELD THAT:- There is a crystal clear admission of liability of Corporate Debtor to pay an amount of ₹ 2,96,54,219.00 to Arun Agrawal and Annapurna Agrawal who, we have found, were admittedly operating under the Trade Name of Priya Trading Company . This is notwithstanding the fact that such admission of liability to pay has been subjected to clearing of disputes as mentioned in notice dated 16th June, 2018 and reply notice dated 2nd July, 2018. Reference to such notice and reply notice would reveal that the dispute related to breach of terms of the agreement as regards generating of revenue by the Corporate Debtor which according to it missed the intended target due to non-supply/ short supply of raw material. However, such dispute does not constitute a pre-existing dispute qua the amount payable in law or in fact respecting which default has been committed. Admittedly, the Corporate Debtor did not discharge the liability in regard to the aforesaid operational debt and committed default by raising the bogey that it owed the amount in question to Arun Agrawal and Annapurna Agrawal but not to the Operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er with the copy of invoices demanding payment of the defaulted amount to the Corporate Debtor in terms of Section 8 (1) of the I B Code and the Corporate Debtor is, within ten day of the receipt of the demand notice, required to respond by either bringing to the notice of Operational Creditor existence of a dispute, if any, or record of the pendency of a suit or arbitration proceedings filed prior to receipt of demand notice or Corporate Debtor may respond by bringing to the notice of Operational Creditor the evidence qua payment of operational debt claimed to be unpaid through electronic transfer from bank account of Corporate Debtor or encashment of a cheque issued by the Corporate Debtor in the name of Operational Creditor . It is only after expiry of ten days from the delivery of demand notice and in the event of non-receipt of the payment or notice of dispute from the Corporate Debtor that the Operational Creditor can file application under Section 9 to trigger Corporate Insolvency Resolution Process. This legal position, emanating from the combined reading of Sections 8 and 9 of the I B Code has been dealt with by the Hon ble Apex Court in Mobilox Innov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor , at the time of delivery of raw material did not raise any objection in regard to the quality thereof while the amount was deducted as regards shortages in the quantity of raw material and same was reflected in the ledger account of the Corporate Debtor . According to Operational Creditor , an amount of ₹ 4,80,65,149/- (Principal amount of ₹ 3,31,37,601 and interest of ₹ 6,62,752/- from 8th June, 2018 to 5th July, 2018 for supply of broken rice and Principal amount of ₹ 1,39,85,095/- and interest amounting to ₹ 2,79,701/- from 2nd June, 2018 to 2nd July, 2018 for supply of coal) was due and payable by the Corporate Debtor towards invoices raised by the Operational Creditor for the delivery of raw material during 2018-2019. The Operational Creditor issued demand notice dated 5th July, 2018 supported by the copies of invoices demanding payment of outstanding dues which was replied to by the Corporate Debtor on 14th July, 2018 wherein the liability was denied on the ground that there was no privity of contract between the Operational Creditor and the Corporate Debtor for supply of raw material to the latter and the raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the other part with regard to supply of broken rice and coal etc. required for production of ENA for a period of three months. Our attention has been invited to registered lawyer s notice dated 16th June, 2018 served by the Corporate Debtor upon Shri Arun Agrawal and Smt. Annapurna Agrawal forming Annexure-A-3 of the Appeal Paper Book at page 57 to 62, Para 3 whereof reads as under:- 3. My client states that both of you are running a business under the name and style of Priya Trading and are inter-alia engaged in supply of raw materials i.e. broken rice, coal and husk. Service of this notice is not in dispute. In this regard it would be appropriate to refer to the reply dated 14th July, 2018 furnished by the Corporate Debtor to the Demand Notice dated 5th July, 2018, wherein the Corporate Debtor has, in unambiguous terms, admitted the factum of service of registered lawyer s notice dated 16th June, 2018 upon Arun Agrawal and Annapurna Agrawal. It is therefore abundantly clear that the Corporate Debtor was conscious of the fact that Arun Agrawal and Annapurna Agrawal supplying raw material to it were operating under the name and style of Priya Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor to pay an amount of ₹ 2,96,54,219.00 to Arun Agrawal and Annapurna Agrawal who, we have found, were admittedly operating under the Trade Name of Priya Trading Company . This is notwithstanding the fact that such admission of liability to pay has been subjected to clearing of disputes as mentioned in notice dated 16th June, 2018 and reply notice dated 2nd July, 2018. Reference to such notice and reply notice would reveal that the dispute related to breach of terms of the agreement as regards generating of revenue by the Corporate Debtor which according to it missed the intended target due to non-supply/ short supply of raw material. However, such dispute does not constitute a pre-existing dispute qua the amount payable in law or in fact respecting which default has been committed. The admission in the Reply to the Demand Notice dated 14th July, 2018 leaves no room for doubt that the factum of owing of an operational debt to the tune of ₹ 2,96,54,219.00 arising out of supply of goods by the Operational Creditor to the Corporate Debtor is an acknowledged liability which has been admitted in specific and unambiguous terms. Obligation to pay such amount could n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
