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TMI Blog2020 (4) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... v. ORDER HEMANT KUMAR SARANGI, TECHNICAL MEMBER. 1. The present application is filed under section 9 of Insolvency Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by M/s. A.B. Stainless Steel(for brevity 'Applicant'), through its partner Mr. Deepak Shah, authorizing him to file present application vide letter of authorization, signed by all the partners dated 08-10-2018, with a prayer to initiate the Corporate Insolvency Resolution Process against (CIRP) against M/s. International Coil Ltd. (for brevity 'Respondent'). 2. The Applicant, the Operational Creditor, namely M/s. A.B. Stainless Steel is a partnership firm, having PAN No. AASFA6512F, having its registered office at 56th, First Floor, Office No. 10, Kika Street, Gulalwadi, Mumbai -400004, Maharashtra, inter alia, engaged in the business of manufacturer, supplier, wholesaler and trader of S.S., C.S., M.S. Alloy Steel Pipe, Fittings Flanges, all types of Industruial Valves, M.S. Angle, Channel Plates, 3. The Respondent, namely M/s. Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Two Thousand Seven Hundred Four) is still legally due and payable by the Corporate Debtor. 6. As per the submissions of the Operational Creditor, it had duly supplied the goods to the Corporate Debtor against the purchase orders issued by the Corporate Debtor and submitted all the invoices along with lorry receipts with the Corporate Debtor. The Corporate Debtor issued five post dated cheques of ₹ 10,00,000/- on or about 15.09.2017, each in favour of the Operational Creditor stating that the outstanding amount will be cleared at the earliest, however, neither the payment has been made by the Corporate Debtor nor it gave any instructions to the Operational Creditor despite follow-up with the Corporate Debtor, to deposit the aforementioned cheques. It is also submitted that the last invoice was raised by the Operational Creditor on 23-12-2016, since then Operational Creditor has been following up with the representatives and authorised personnel of the Corporate Debtor for clearing dues. Representatives of Corporate Debtor assured' the Operational Creditor that the payment Will be cleared before Diwali vide email dated 18-10-2016, however, the Corporate Debtor failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of compromise deed dated 23.05.2018, yet no payment has been received from the Corporate Debtor, a copy of the said email dated 23-5-2018 has been annexed along with the application. 9. It is further submitted that there cannot be any performance due upon the Operational Creditor towards Corporate Debtor since Operational Creditor fulfilled its commitment and obligations for supplying goods in the year 2016 and Corporate Debtor as neither given any notice of termination to the Purchase orders oders nor raised any dispute regarding the supply of material by the Corporate Debtor to the Operational Creditor' or till the filing of the said suit. 10. In spite of various requests made and reminders sent by the Applicant, the respondent did not reply. On failure to pay the outstanding dues by the Respondent, the applicant sent a demand notice dated 10-10-2018, under section 8 of the Insolvency bankruptcy Code, 2016 to the respondent asking them to make the entire payment of ₹ 1,56,24,690/- (Rupees One Crore Fifty Six Lakhs Twenty Four Thousand Six Hundred Ninety) [comprising of due principal amount of ₹ 1,07,22,704/- and interest charged @ 24% from the due da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, it was in need of various stainless steel products for the purpose of executing the said project, the Operational Creditor approached the Corporate Debtor at its registered office for supplying the various stainless steel products; therefore, with an intention to enter into business transaction, the Corporate Debtor and Operational Creditor had exchanged offers and had discussions regarding the same, after the final discussion Corporate Debtor had issued the various purchase order for supplying the various stainless steel products' in favour of the Operational Creditor, having the total value of ₹ 1,81,62,317/- and the same was immediately accepted by the Operational Creditor, it is important to note here that time was the essence of the agreement, as the articles were required to be delivered as per the prescribed period mentioned in the respective purchase orders. 16. The Respondent further states that, the Operational Creditor proved to be a defaulter supplier as it had not supplied articles within the agreed delivery period which was specifically stated in the said purchase orders i.e., defect liability period shall be for 12 months from the date of commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the applicant. There has been much cloud in the submission of the respondent. Therefore, without any specific details of material particulars or evidence the fact of existence of a dispute cannot be sustained. 20. In Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 84 taxmann.com 320/143 SCL 325 the Hon'ble Supreme Court held that pre-existing dispute is the dispute raised before demand notice or invoices was received by the 'Corporate Debtor'. Any subsequent dispute raised while replying to the demand notice under section 8(1) cannot be taken into consideration to hold that there is a pre-existing dispute. 21. In Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. 2017 85 taxmann.com 292/144 SCL 37 Hon'ble Supreme Court held: 40. . . . . . . . . Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defense which is mere bluster. However, in doing so, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Operational Creditor. The amount however will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Operational Creditor. 27. As a consequence of the application being admitted in terms of section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of section 14(1) shall follow in relation to the Respondent prohibiting the respondent as per proviso (a) to (d) of section 14(1) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(3) of the Code shall come in force. 28. The Registry is directed to communicate a copy of the order to the Operational Creditor, the Corporate Debtor, the Interim Resolution Professional and the Registrar of Companies, NCR, New Delhi at the earliest but not later than seven days from today. The Registrar of Companies shall update their website by updating the status of Corporate Debtor and specific mention regarding the admissi ..... 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