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TMI Blog2020 (10) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... issue and expiry of shelf life and the same were duly received and acknowledged by the Operational Creditor. It is further submitted that vide notice of dispute dated 01.08.2018, the Corporate Debtor had categorically put the Operational Creditor on notice of several disputes such as the returned goods, Debit Notes not accounted for, payments not given credit to and among others. It is worthwhile to refer to the provisions of the I B Code, 2016 more particularly to Section 9(5)(ii)(d) of the I B Code, 2016 which provides that if notice of dispute has been received by the Operational Creditor or there is a record of dispute in Information Utility, this Authority is required to reject the Application and thereby communicating the dismissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the Corporate Insolvency Resolution Process (CIR Process) against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP). 2. Heard the Learned Counsels for the Operational Creditor and the Corporate Debtor and perused the pleadings including the documents placed on file. 3. The Operational Creditor has claimed an amount of ₹ 63,54,412/- (Rupees Sixty Three Lakhs Fifty Four Thousand Four Hundred and Twelve Only) which is due and payable by the Corporate Debtor along with interest at 24% per annum from the date of acknowledgment i.e. 07.11.2017 till the date of realization. The bases for the said claim are the Invoices which are 11 in numbers, the details of which are given at pages 13 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Operational Creditor in favour of the Corporate Debtor, which is placed at page 105 of the typed set filed with the Application. 7. The Learned Counsel for the Operational Creditor has made a reference to the document placed at Page 79 of the typed set filed with the Application, which as per the Operational Creditor is the confirmation given by the Corporate Debtor. It is noted that when the communication dated 25.10.2017, which is placed at page 78 of the typed set filed with the Application, was sent by the Operational Creditor to the Corporate Debtor for confirmation, the outstanding amount was shown as ₹ 85,67,060.92p as on 30.09.2017, whereas in confirmation note acknowledged by the Corporate Debtor, the total amount is sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor in respect of both the accounts i.e. Operational Creditor viz. Solenis Chemicals India Pvt. Ltd., and Connell Bros Company (I) Pvt. Ltd. 10. It is specifically noted that the Invoice under which the claim is made, is only relating to the Operational Creditor namely Solenis Chemicals India Pvt. Ltd., and not been acquired by the Operational Creditor, with respect to which the Corporate Debtor has admitted an amount of ₹ 27,79,620/- as per the balance confirmation dated 07.11.2017. Thereafter, a Debit Note dated 17.07.2018 has been raised by the Corporate Debtor for an amount of ₹ 8,20,233/-, which has been raised on the basis of price difference. 11. The Counsel for the Operational Creditor has filed Affidavit in comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary evidence, the same also requires to be decided based on legal merits. 14. In a nutshell, the case of the Operational Creditor is that it had acquired the part of the business of one Connell Bross vide Asset Purchase Agreement dated 09.02.2015 and pursuant to which Connell Bross has transferred all its receivables which includes the receivables of Corporate Debtor. A subsequent Assignment Agreement was executed on 31.03.2015 to assign receivables as on date to the Operational Creditor which includes liability of Corporate Debtor toward Connell Bross to the tune of ₹ 52,81,923.14. After being aware of the said agreement between Connell Bross and Operational Creditor, the Corporate Debtor continued to give orders for chemicals as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or there is a record of dispute in Information Utility, this Authority is required to reject the Application and thereby communicating the dismissal to both the Operational Creditor as well the Corporate Debtor. 17. Added to this, the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited held that the 'existence of 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 and observed as follows: - 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on non-payment of a debt, any part whereof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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