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TMI Blog2020 (8) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code") for short) against "Karnani Solvex Private Ltd" (Corporate Debtor). The Adjudicating Authority (National Company Law Tribunal, Jaipur Bench, Jaipur) by impugned order dated 1st October, 2019 after discussing the case on merit, rejected the application on the ground that the claim of the Appellant falls within the ambit of 'Existence of Dispute'. 2. The Operational Creditor is engaged in the business of transportation, clearing and storage work. The Operational Creditor has carried out transportation clearing and storage work for the Corporate Debtor and has raised several invoices against the Corporate Debtor. The invoices are payable within 15 days from the date of issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 MTS of cargo is lost due to moisture and other operations. 5. Respondent stated that one more report titled as "Godown Wise Stock Report" of Godown "Paradise GO-5" was also communicated to Respondent on 10.02.2018 by which it was informed that in godown "Paradise Go-6" the total balances cargo is 100.760 MTs. 6. Respondent stated that as per calculation presented to the respondent by appellant verbally, out of 100.760 tons of cargo of Godown "Paradise Go- 06" 78.170 tons of cargo was delivered to one of the customers of respondent and only apaprox 22 tons of cargo left in godown. The final calculation as per respondent remained as 22 tones of "Paradise GO-6" with 8 tones of "Paradise Go-05 makes as total of 30 tons of cargo. 7. Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is always open to the 'Corporate Debtor' to point out pre-existence of dispute. It is to be shown that the dispute was raised prior to the issuance of demand notice under Section 8(1). 12. In "Mobilox Innovations Pvt Ltd Vs Kirusa Software (P) Limited - 2017 1 SCC Online SC 353", the Hon'ble Supreme Court held that the 'existence of the dispute' and/or the suit or arbitration proceeding must be pre-existing - i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. In the said case, the Hon'ble Supreme Court held as to what are the facts to be examined by the Adjudicating Authority while examining an application under Section 9, which are - whether there is an operational debt as defined exceeding Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the Respondent that "out of the above stock physical balance in Godown No.5 will be about 8-10. Loss will be around 75 tones due to moisture and other operations.". Appellant also intimated the Respondent vide email dated 28.11.2018 (Page 96 of appeal) to arrange to lift balance cargo approx 30 mts lying in rejected condition with appellant and the appellant demanded his payment. This clearly shows that the appellant have fairly conveyed to the Respondent that the loss will be around 75 tones due to moisture and other operations and 30 tons lying in rejected condition. We have gone through the email exchanged between the parties. The Respondent vide email dated 20.11.2018 (Page 71) informed the appellant first you have to give our carg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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