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TMI Blog2020 (9) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: i. The Operational Creditor arranged the publications in newspapers as details placed in the respective purchase orders. ii. For 24 invoices and services provided thereunder, the understandings with regard to the providing of services were agreed prior to the execution of service with the Corporate Debtor. The same was done by way of approval taken from the Corporate debtor upon the purchase orders, which were done by the director of the Corporate Debtor by signing the respective purchase order. iii. The 24 invoices were raised in this regard at the rates specified in the purchase orders placed by Corporate Debtor, out of which amount due and payable as on Rs. 82,10,374/- plus Interest of Rs. 4,51,022/- aggregating to Rs. 86,61,396/-. As agreed terms and conditions, amount becomes due from the expiry of 30 days of the date of invoice. iv. The operational Creditor has sent several reminders to Corporate Debtor vide emails dated 08.05.2019. 10.05.2019, 13.05.2019, 16.05.2016, 24.05.2019 and 04.05.2019 seeking due amount along with interest thereon. However, the dues have not been paid till date. v. The demand notice dated 23.07.2019 under Section 8 of the Code was ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate debtor shows the payment of Rs. 26,64,338.32/- has been made to operational creditor. x. The invoices raised by the Operational creditor do not contain the signature/stamp/seal of the Corporate Debtor and the same are not acknowledged by the Corporate Debtor. 6. The Operational creditor in its rejoinder dated 09.01.2020 stated that: i. The whatsapp communication between both the parties is not related to the invoices claimed to have been due or the business relationship between the Applicant and Corporate Debtor. Also, there are no emails in the annexures as claimed in the reply by the Corporate Debtor. ii. The rates for the publication of the advertisements are dependent upon various factors including nature/type of advertisement, type/business of client, volume of deal, nature/category of advertisement and many others and therefore, same service can be provided to different parties at different rates. iii. The compliance of Section 9(3)(c) is directory in nature and not mandatory in nature. iv. Last payment of Rs. 10,70,931/- was received on 10.04.2019 from the Corporate Debtor and demand notice was issued on 23.07.2019. v. As per the terms and conditions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is within time. 13. On the other hand, Ld. Counsel for Corporate Debtor submitted that Varum Mehta is the person to whom email correspondence has been made with the Operational Creditor regarding the payment of the amount which would be evident from page 98 of the paper book as Annexure-7. 14. He further submitted that What's app communication is with one Hindustan Naresh Yadav is associated with Hindustan News Paper and he further submitted that the Corporate Debtor has never issued a purchase order and the said purchase order enclosed with the petition is not signed by any person. 15. He further submitted that Corporate Debtor has placed an order for advertisement for another group namely. V Bazar with Hindustan Media Ventures Ltd. And the said company charged a very nominal and fair market rate for the same type of service and he also enclosed the copy of invoices generated by Hindustan Media Ventures Ltd. as Annexure A-5 and on the basis of that he claimed that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor. He further submitted that Operational Creditor has generated different price invoices against the same serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days 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, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment of unpaid operational debt--(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.--For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred. Section 9 (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under sub-section (2) is incomplete; (b) there has been repayment payment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section. Mere plain reading of the provisions shows that under Section 8 of the IBBI Code on the claim of default, the Operational Creditor at first is required to deliver the demand notice of unpaid Operational Creditor and liberty is given to the Corporate Debtor to bring the notice of the Operational Creditor existence of the disputes and the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , these documents are not relevant. 22. As it is settled principle of Law that the power of Adjudicating Authority under Section 9 is very limited. At this juncture, we would like to refer the decision of Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited dated 21.09.2017 in which Hon'ble Supreme Court held that "It is clear, therefore, that once the Operational Creditor has filed an application, which is otherwise, complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the Operational Creditor or there is a record of dispute in the information utility. It it clear that such notice must bring to the notice of the Operational Creditor the "Existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. 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 assetion of fact unsupported by evidence. It is important to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information utility. 26. Therefore, in view of Section 9(5)(i) of IBC. we inclined to admit this application and Accordingly, this petition is ADMITTED. A moratorium in terms of Section 14 of the IBC. 2016 shall come into effect forthwith staying:- 1. effect forthwith staying:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Further: (2) The supply of essential goods or services to the corporate debtor as may he specified shall not be terminated or su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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