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TMI Blog2019 (8) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... tor is not maintainable - there is also no dispute that this is not the forum to examine and adjudicate as to what extent the claim of the petitioner is admissible as due and recoverable. Neither the Tribunal in the proceedings under Section 9 will examine the merits of the respective disputes. Moreover, even the adequacy of dispute is not to be seen. It is only to be seen whether the dispute raised by the corporate debtor qualifies as a 'dispute' as defined under sub-section (6) of Section 5 of the Code. Whether there is an existence of a dispute between the parties that would fall within the inclusive definition contained in Section 5(6) of the Code? - HELD THAT:- In the present case admittedly, respondent has relied upon its reply to the demand notice issued on 28.12.2018 under Section 8(2) of the Code bringing to the notice of the petitioner the existence of dispute in respect of the claimed operational debt - Besides respondent has placed on record various correspondences and debit notes to prove that the dispute in the reply to the demand notice was not raised for the first time but pre-existed much prior to the Section 8 notice. There is pre-existing dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi - 110 005. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is the case of the applicant that the corporate debtor has been a regular purchaser of goods from the applicant operational creditor since 2012. The corporate debtor had a running account with the operational creditor for the same. Following the standard practice of running accounts, the operational creditor would regularly fulfill orders made by the corporate debtor and raise invoices. The corporate debtor on the other hand would make lump sum payments for the goods supplied on account, with the understanding that the payments would be adjusted against the first outstanding invoices and then towards any remaining bills. 4. It is stated in the application that in due Course of business the Operational Creditor had supplied goods vide invoices numbered 0243, 0244, 0337 and 0338 dated 10.01.2015 and 30.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debit note dated 15.04.2016 have been duly received by the Petitioner prior to the issuance of Section 8 notice. It is claimed that the two debit notes were duly acknowledged by the petitioner at that time and bear a stamp of the petitioner company evidencing receipt. 12. It is further alleged that the operational debt claimed by way of the present petition stands extinguished since 15.04.2016 and therefore the present petition is liable to be dismissed. 13. Learned counsel for the respondent also pointed out that though the invoices pertain to the year 2015 but not a single communication has been made from the petitioner to the respondent seeking payment of the balance till December 2018. It is submitted that the petitioner had issued emails to the respondent on 28.12.2015 seeking for C Form details. However, no mention of any amount left outstanding between the parties is mentioned therein. It is claimed that any prudent business person would take this opportunity to ask for any amount he believed to be outstanding. 14. It is further emphasized that vide email dated 03.09.2015 the respondent had requested for the accounts of the petitioner to confirm the balance. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of the clutches of the rigors of the Code. 21. Dispute has been defined under the Code in Section 5(6) which envisages that: (6) dispute includes a suit or arbitration proceedings relating to-- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty. 22. It is no longer Res-Integra that the definition of dispute is inclusive and not exhaustive. Dispute has been given wide meaning so as to cover all disputes on debt, default etc. and not be limited to only pending suit or a record of a pending arbitration. 23. Needless to say, that it is always open to the 'Corporate Debtor' to take the plea of 'existence of dispute' before the Adjudicating Authority, which alone can be a ground to reject the application filed under Section 9 of the Code. 24. It is now a settled proposition of law that where there is existence of dispute prior to the issuance of notice under Section 8, the petition under Section 9 preferred by the Operational Creditor is not maintainable. 25. It is pertinent to refer to the case of Mobilox Innovations Private Limited reported in 2017 (11) SCALE 754 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was not raised for the first time but pre-existed much prior to the Section 8 notice. 30. Respondent has claimed that debit notes bearing dated 31.03.2015 and dated 15.04.2016 have been duly received and acknowledged by the petitioner by affixing the stamp of the petitioner company. 31. The main contention of the respondent is that these unpaid debit notes combined covers the alleged operational debt, and therefore the present claim stands extinguished long before in the year 2016. 32. In response petitioner has claimed that the debit notes are forged and fabricated and was received for the first time with the reply dated 28.12.2018. 33. Ordinarily acknowledgements bearing signature and seal of a company are sufficient evidence of receipt. On one hand respondent has not placed any proof of dispatch/delivery of debit notes to the petitioner and on the other hand the petitioner could not confirm whether any FIR was filed or any action was initiated when the alleged unauthorized and illegal use of the seal of the company came to their knowledge. No FIR in this respect has been placed on record. 34. These are matters of trial and enquiry. Tribunal in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (ii) (d) of the Code clearly mandates that Adjudicating Authority shall reject the application when notice of dispute has been received by the applicant operational creditor. 40. In the factual scenario it is reiterated that in the present case notice under Section 8 was duly replied within the period prescribed by bringing to the notice of the operational creditor the existence of dispute. Materials placed before us show that dispute was raised prior to the issuance of notice under Section 8 of the Code. The claim of operational debt in question is not free from dispute. There is substance and plausible contention in the pleadings of both sides, which necessitates investigation. 41. Respondent has raised dispute with enough particulars to qualify as a dispute as defined under sub-section (6) of Section 5 of the Code. 42. For the reasons stated above the application fails and therefore the same is rejected. 43. It is made clear that any observations made in this order shall not be construed as an expression of opinion on the merit of the controversy and the right of the applicant before any other forum shall not be prejudiced on account of dismissal of instant applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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