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TMI Blog2019 (8) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 9 can be initiated and as per the scheme of I B Code 2016, strict onus lies on the shoulders of Corporate Debtor to show the existence of dispute before delivery of notice u/s 8, otherwise the purpose of sections 8 and 9 proceeding would get defeated if frivolous contentions of Corporate Debtor are accepted and, simultaneously, Operational Creditor cannot use the mechanism of I B Code 2016 as a recovery tool. This authority is not required to prove the veracity of the claim of either party and is only concerned with the aspect of existence of dispute prior to delivery of notice u/s 8 of the I B Code 2016 for the purpose of deciding the fate Of application under section 9 of I B Code 2016. Petition dismissed. - C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase order / supplies started in 2015 and last payment of ₹ 2 lakhs had been made on 10th April 2017. Notice under Section 8 (2) read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudication Authority) Rules, 2016 was served on 9th October 2018. The Corporate Debtor submitted its reply in response thereto on 18.10.2018 whereby it was claimed that the amount claimed in such notice of demand was not payable to the extent of claim based on the invoices where material was never supplied and delivered. 3. The Ld. Counsel appearing on behalf of the Operational Creditor narrated the basic facts and drew our attention to relevant pages of the petition containing such documents. The thrust of the argument on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally mentioned. 5. The Ld. Counsel for the Corporate Debtor also drew our attention to pages 50 and 51 to contend that the same invoice No. MPPL-405/ 15- 16 was raised with different values on 6/3/16 and 7/3/16 due to marginal variation in price per Kg. It was also submitted that the Operational Creditor filed both Form No. 3 and Form No. 4 whereas only either of the Form was required and in the present case, it was Form No. 3, hence, for this reason application filed by the Operational Creditor was liable to be dismissed as not meeting the requirements of Section 9 of the IBC, 2016. 6. The Ld. Counsel for the Operational Creditor, in the rejoinder contended that the documents were genuine and which was supported by the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the same invoice was dated 6.3.2016, which was manually prepared and rate per Kg had been charged at ₹ 30/- per Kg, whereas computerized copy of the same was dated 7th March 2016 and the rate per Kg was stated as ₹ 30.70. Thus, there was a discrepancy. It has also been alleged that material claimed to have been sold and delivered in pursuance to such invoice was never delivered. We have perused both the invoices placed at page 50 and 51 of the Paper Book. The number of both invoices are same. Even the vehicle used for delivery of material is same. However, both rate as well as grade of Bitumen in both the invoices are different. Further, the quantity mentioned in both the invoices stands at 14,861 Kg, whereas in the weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 46 Lakhs, the Corporate Debtor has made payment of ₹ 34 Lakhs approximately. Hence, this fact also supports the claim of the Corporate Debtor. 10. Having analysed the facts, we have to look at legal provisions. The Operational Creditor is required to deliver the notice of demand along with invoices to the Corporate Debtor in prescribed form and manner as per the provisions of section 8 read with relevant regulations before filing a petition under section 9 of the I B Code 2016. The requirement of service of notice of demand under section 8 has been provided to grant an opportunity to the Corporate Debtor to communicate its view point before proceeding under section 9 can be initiated and as per the scheme of I B Code 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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