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TMI Blog2019 (1) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') with a prayer for initiating the Corporate Insolvency Resolution Process against the "Corporate Debtor", M/s Trim India Private Limited (for brevity the 'Corporate Debtor'). The 'Operational Creditor' is a Private Limited Company having its registered office at 147 Rajendra Bhawan, Rajender Palace New Delhi-110008. The Corporate Debtor is M/s Trim India Private Limited. It was incorporated on 31.05.1995 and its registered office is located at Flat No. 1235, Sector B, Pocket-1 Vasant Kunj, New Delhi-110070. 2. From the petition it is seen that the Operational Creditor had earlier filed an application before the NCLT, Chandigarh. Vide Order dated 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided transportation services from 2013 to September, 2017. The Corporate Debtor had made the last payment of Rs. 4 Lakhs in the month of August, 2017. 5. The Operational Creditor issued notice u/s 8 of IBC on 30.12.2017. Two replies to the same, dated 22.01.2018 and 01.03.2018 have been attached along with the petition. In this reply, the Corporate Debtor has stated that there is no outstanding as alleged in the notice. Extracts of the 1st reply are reproduced for reference: - "During November, 2015, the officials of Trim India Pvt. Ltd. discovered that you the addressee sent excessive charged bills. When the same was raised before the owner of you the addressee i.e. Mr. Laxmi Raj Singh, he admitted the faults. In order to compensate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In their reply filed before this Bench, the Corporate Debtor has stated that the application is not maintainable and the applicant is liable to pay Rs. 3,15,99,172/- including interest for which a suit has already been filed before the Hon'ble High Court of Delhi bearing CS(Comm) No. 796/2018 which is pending before the said High Court. It is also stated that the notice of dispute was sent by the respondent on 22.01.2018. 7. The Corporate Debtor in their written submissions filed before us has stated that in November, 2015, it came to the knowledge of the respondent company that the Applicant Company was cheating the Respondent Company and raising excessive invoices. They have referred to a letter dated 14.07.2017 issued by the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 763.33 towards Forwarding Cost Difference. c. An excess payment of Rs. 61,49,985/- was taken under the alleged head of "Mathadi". d. Wrongly charged freight of Rs. 32,52,188.64. e. As such the defendant had overcharged a total sum of Rs. 3,80,23,494.84". 10.1 The Respondent has already filed a suit for recovery with respect to the same and the said suit bearing CS (Comm) No. 796 of 2018 is pending adjudication before the Hon'ble High Court of Delhi at New Delhi. 10.2 The Respondent has also filed a criminal complaint against the applicant and its officials Mr. Anil Khatana, Mr. Laxmi Raj Singh, Ms. Manju Solanki and Mr. Vikas Solanki and an FIR bearing No. 137 dated 25.06.2018 u/ss. 406, 420, 467, 468, 471, 506 read with 120B of IPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is seen that the affidavit of no dispute filed by the applicant along with the petition states "the Operational Creditor affirms that no dispute of the unpaid and admitted operational debt, as prescribed and required under the Code, have been brought to the notice of the Operational Creditor by the Corporate Debtor within 10 days from the receipt of the demand notice dated 30.12.2017". This affidavit dated 11.08.2018 is not correct as the replies of the Corporate Debtors to the section 8 notice that have been enclosed with the petition, show otherwise. 14. The records show that there has been detailed correspondence between the parties regarding excess charges billed by the applicant since 14.07.2016. It is also seen that five debit not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem on 09/10th of January, 2018 and they had replied to it on 16.01.2018. The present petition was filed on 17.08.2018, more than six months after receipt of the said reply. The provisions of section 9(1) of IBC read as under: - "After the expiry of the period often days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process (Emphasis added). 16. As the Corporate Debtor's reply dated 16.01.2018, had clear indicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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