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TMI Blog2020 (7) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of such notice or the invoice in relation to such dispute. In the present case, admittedly, there are disputes between the Appellant and the Respondent which is evident from the records - From the FIR lodged by the Appellant prior to sending of Section 8 Notice and the Respondent disputed the debt to be payable by the Respondent in their reply to the Demand Notice. The moment there is an existence of a prior dispute, the Corporate Debtor gets out of clutches of the rigors of the Court. Further the adequacy of dispute is only to be seen whether the dispute raised by the Corporate Debtor specifies as a dispute as defined under section 5(6) of IBC. In view of Section 9(5)(ii)(d) of the IBC on the ground that there is a record of dispute existence between the parties, which dispute is serious in nature - there is pre-existing dispute between the parties which cannot be adjudicated in a summary proceeding - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 661 of 2019 - - - Dated:- 29-1-2020 - A.I.S. Cheema, Judicial Member Kanthi Narahari And V.P. Singh, Technical Member For the Appellant : Anirudh Wadha, Keshav Gulati, P. Surya Teja and Rohit Sharma, Advs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having not received the debt due and payable by the Respondent-Corporate Debtor, the Appellant was constrained to file the Application as stated supra before the learned Adjudicating Authority. It is submitted that the Appellant and Respondent having a business relationship since the year 2005 wherein the Appellant supplied gas cylinders to the Respondent on a routinely basis and the payment was made by the Respondent in cycled basis. 6. While the Respondent stopped making payment to the Appellant since the year 2014 and large amount stood due from the Respondent and the Appellant stopped the supply of gas cylinders to the Respondent. It is stated that the supply of gas cylinder to the Respondent is an important requirement in their business and the Respondent met the Appellant around May, 2014 and convinced them to continue the supply of gas and assured the Appellant with respect to the payments. It is stated that the Respondent was paying the bills in cyclic way until 20-10-2016 and the Appellant continued to deliver the Gas cylinders to the Respondent. It is stated that the bills raised on and after June 2014, the Respondent defaulted in payment of the bills raised for supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanding the debt on 31-3-2018. However, the Appellant lodged the FIR on 07-9-2016 against the Directors of the Respondent under Sections 120-B, 406, 420 and 506 of IPC which offences are serious in nature and the Appellant specifically mentioned the same amount i.e., ₹ 1,10,23,403.63 as claimed in the Application and Demand Notice. In the Demand Notice and Section 9 Application, the Appellant claimed the principal amount of Rs. ₹ 1,10,23,431.38 which is the same amount the Appellant is claiming from the Respondent-Corporate Debtor. However, as per the complaint of the Appellant, the contents of the FIR clearly states that due to the acts of the accused person, the Informant (Appellant) sustained wrongful loss of ₹ 1,10,23,403.63 and the accused persons i.e. Directors of Respondent Company wrongfully gained ₹ 1,10,23,403.63. 10. It is seen that the Appellant filed the above complaint specifically alleging cheating the Appellant by not paying the due amount towards supply of Oxygen Cylinders, Carbon dioxide Cylinders and LPG Cylinders. The Respondent filed quashing proceeding of the alleged FIR before Hon'ble High Court of Calcutta, Kolkata. The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. . [Emphasis supplied] 12. To support the existence of dispute, it is seen from the reply of the Respondent dated 13-4-2018 to the Demand Notice dated 05-4-2018 whereby the Respondent has categorically stated that there is no recoverable debt due against the Respondent as alleged in the Demand Notice dated 5-4-2018. Further, the Respondent in his Reply has stated that the Respondent had paid ₹ 86,30,000/- which is an excess amount of ₹ 5,64,889/- during the period from June, 2014 to October, 2016 and the same is not adjusted by the Appellant. 13. In the Rejoinder filed by the Appellant simply denied and disputed that the Respondent had paid an excess amount to the tune of ₹ 5,64,889/- during the period from June, 2014 to October, 2016. Further, at page-7 of the Rejoinder of the Appellant, it is stated, It is denied and disputed that the Respondent-Company had paid more than actual amount due to it. 14. From the facts and records, it is emphatically clear that there is serious dispute between the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; [Emphasis supplied] 15. From the above provision it is mandatory that the Operational Creditor on the occurrence of a default, deliver a Demand Notice of unpaid operational debt, copies of invoices demanding payment of the amount involved in the default to the Corporate Debtor in such form and manner as may be prescribed. The Corporate Debtor shall, within a period of 10 days of the receipt of the Demand Notice or copy of the invoice mentioned in Section 8(1) of IBC bringing to the notice of the Operational Creditor regarding existence of a dispute (if any) record of pendency of the suit or the arbitration proceedings filed before the receipt of such notice or the invoice in relation to such dispute. In the present case, admittedly, there are disputes between the Appellant and the Respondent which is evident from the records as stated supra. From the FI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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