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TMI Blog2020 (8) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, [ 2017 (9) TMI 1270 - SUPREME COURT ] wherein Hon ble Supreme Court laid down the law regarding powers of Adjudicating Authority passing the order of under Section 9 of the IBC. v). The Ld. Adjudicating Authority failed to appreciate the documents placed on record along with Application under Section 9 of the IBC . vi). From the record as we find that the Respondent has defaulted to pay more than ₹ 1 lakh and in absence of any pre-existing dispute and the record being complete, the Application under Section 9 preferred by the Appellant was fit to be admitted. Case remitted to the Ld. Adjudicating Authority for admitting the application under Section 9 of the IBC after Notice to both the parties and further to enable the Corporate Debtor to settle the matter prior to the admission - appeal allowed by way of remand. - Company Appeal (AT) (Insolvency) No. 1083 of 2019 - - - Dated:- 10-8-2020 - [Justice A.I.S. Cheema] Member (Judicial) , [Justice A.B. Singh] Member (Judicial) And [Kanthi Narahari] Member (Technical) For the Appellant : Mr. Arihant Jain, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2018, the Appellant had made total sale of ₹ 7,89,06,382/- (Rupees Seven Crore Eighty-Nine Lakh Six Thousand Three Hundred and Eighty-Two only) to the Respondent and after factoring into all the payments received from the Respondent, the total outstanding amount due and payable to the Appellant as on 31.03.2018 / 01.04.2018 was ₹ 2,39,80,892/- (Rupees two Crore Thirty-Nine Lakh Eighty Thousand Eight Hundred and Ninety-Two only) which is reflected in the Statement of Accounts of the Respondent, maintained by the Appellant for the Financial Year 2017-2018. viii) That the Appellant further states that the period from 01.04.2018 till 28.12.2018 (financial year 2018-2019) the Appellant had made a total sale of ₹ 2,03,52,062/- (Rupees Two Crore Three Lakh Fifty-Two Thousand Sixty- Two only) to the Respondent. As against the said sum of ₹ 2,03,52,062/- i.e. total sale value, the Respondent before the Ld. Adjudicating Authority had admitted a sum of ₹ 1,97,75,383/- and disputed the balance sum of ₹ 5,76,679/-. 3. That the Respondent has filed the Reply before the Ld. Adjudicating Authority on 15.02.2019 and also Reply filed before this Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 25.08.2017 addressed to the accountants of the Respondent has stated that the balance receivable from the Respondent as on 31.03.2017 was ₹ 72,71,010. The Respondent on the other hand, in the e-mail dated 17.05.2018 has admitted that as on 30.04.2018 the amount due from the Respondent to the Applicant was ₹ 2,34,10,945/- but the ledger filed by the Respondent shows that as on 30.04.2018 the balance payable by Respondent to the Applicant was ₹ 92,33,736/-. The opportunity given by the Tribunal to the parties to reconcile their accounts has also not lead to any fruitful results. 6. The Applicant due to its inconsistent conduct has been unable to establish that the amount being claimed by it was owed by the Respondent and that the Respondent has defaulted in the payment of the claimed amount. Thus, this application is dismissed with no costs. . 10. Learned counsel for the Appellant in Memo of Appeal filed under Section 61 of the IBC and also the Written Argument filed on their behalf on 04.03.2020 referred to e-mail dated 08.10.2016 page 473 Vol.- III, this e-mail sent to the Respondent in statement of account till 30.09.2016 and the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28.12.2018 was issued by the Appellant. 15. Learned counsel for the Appellant also referred to Reply to Demand Notice at page 508-524 Vol.- III. The Respondent sent a reply to the statutory notice dated 11.01.2019, which the Respondent without indicating any preexisting dispute and as an afterthought, without specifically pointing out, set up certain forged and fabricated credit notes purported to be issued by the Appellant. Significantly, the Respondent admitted that a sum of ₹ 22,56,833/- is due and payable to the Appellant. 16. The learned counsel for the Appellant during the course of argument and in his written submission have stated that the Ld. Adjudicating Authority clearly erred in not appreciating that the Appellant s case that the Operational Debt is due and payable is completely consistent with the statement of accounts filed by the Appellant which were never disputed / objected by the Respondent prior to receipt of statutory demand notice. On the contrary, the ledger accounts up to 30.09.2016 and 30.04.2018 have been confirmed by the Respondent vide its e-mail dated 08.10.2016 and 17.05.2018 (Ref: Para-7.9- 7.10 Appeal- Vol-I). A Table reflecting the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sufficient to demonstrate that such debt is due and that default has taken place, as may have been admitted by the corporate debtor. 19. Learned counsel for the Appellant further relying in the aforesaid judgment submitted that the Ld. Adjudicating Authority failed to appreciate that there was no occasion for establishing the existence of the entire Operational Debt nor was it necessary to submit the proof of claims of the Operational Debt. 20. Learned counsel for the Appellant further relying on the Judgment of the Hon ble Supreme Court in the Case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, reported in 2018 Vol.- I SCC 353 para 34 wherein the Hon ble Supreme Court held as follows :- 34 Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: i) Whether there is an Operational Debt as defined exceeding ₹ 1 lakh? (See Section 4 of the Act) ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and iii) Whether there is existence of a dispute between the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the aforesaid, admitted fact, we are of the considered view that the Ld. Adjudicating Authority committed error of record and not considered the judgment of the Hon ble Supreme Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, reported in 2018 Vol.- I SCC 353 wherein Hon ble Supreme Court laid down the law regarding powers of Adjudicating Authority passing the order of under Section 9 of the IBC. v). The Ld. Adjudicating Authority failed to appreciate the documents placed on record along with Application under Section 9 of the IBC . vi). From the record as we find that the Respondent has defaulted to pay more than ₹ 1 lakh and in absence of any pre-existing dispute and the record being complete, we hold that the Application under Section 9 preferred by the Appellant was fit to be admitted. ORDER 24. For the aforesaid reasons, impugned order dated 23.08.2019 passed in Company Application (IB)-183/ND /2019 is hereby set aside and remit the case to the Ld. Adjudicating Authority for admitting the application under Section 9 of the IBC after Notice to both the parties and further to enable the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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