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TMI Blog2020 (10) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner and the same was also replied by the Petitioner. Thereafter, the Respondent had filed CP(L) 889 of 2016 under Section 433 and 434 of the Companies Act, before the Hon'ble High Court, Bombay - The dispute regarding the breach of terms and conditions of the work order was raised by the Corporate Debtor long back prior to the issue of demand notice. Hence this is a case of preexisting dispute between the Corporate Debtor and the Petitioner. The disputes raised by the Corporate Debtor falls within the ambit of Section 5(6) of the Code which provides as below: 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; There is a pre-existing dispute, in relation to the unpaid operational debt, between the parties which is supported by the evidence placed on record. This dispute existed prior to the serving of demand notice under section 8 and the Operational Creditor had such notice of existence of such dispute - application rejected. - C. P. (I.B.) No. 119/9/NCLT/AHM/2018 - - - Dated:- 12-2-2020 - Harihar Prakash Chaturvedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 62,711.81 187,874.81 14-Nov-15 NISPL/VAP/1516/2076 53,191.00 53,191.00 26,196.20 79,387.20 1-Dec-15 NISPL/VAP/1516/2078 62,684.00 62,684.00 30,170.75 92,854.75 1-Jan-16 NISPL/VAP/1516/2527 126,981.00 126,981.00 58,529.54 185,510.54 2-Feb-16 NISPL/VAP/1516/2652 130,629.00 130,629.00 57,462.44 188,091.44 3-Mar-16 NISPL/VAP/1516/3014 131,418.00 131,418.00 55,217.16 186,635.16 31-Mar-16 NISPL/VAP/1516/3275 103,274.00 103,274.00 41,490.68 144,764.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as withdrawn on 26.07.2017 with liberty to file fresh petition before the appropriate Forum. 7. Operational Creditor issued notice under the Rule 5 in Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, dated 02.01.2018 for an outstanding of INR18,48,234.54Ps (Rupees Eighteen Lakhs Forty Eight Thousand Two Hundred Thirty Four and Fifty Four Paise Only). 8. Subsequently, the Corporate Debtor replied to the said notice on 11.01.2018 submitting that as per the agreement i.e. point no.11 of letter dated 14.01.2013, in the event of any theft at the factory, the same would constitute liability on the part of the Petitioner and the amount of loss so incurred would be paid by the Petitioner. Further, it was contended that there were two instances of theft in the factory on 31.01.2016/ 01.02.2016 30.03.2016, which resulted in loss of approximately INR20,24,144.00 against which a legal notice dated 28.06.2016 demanding INR75.00 Lakhs was issued to the Petitioner, which was also replied by the Petitioner vide letter dtd:07.07.2016. In the said reply the Petitioner denied the liability and instead demanded a counter claim of INR11,45,500.08Ps t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties appeared. The Respondent filed its reply on 11.04.2018, whereas the Petitioner filed its written submissions on 25.06.2018. 15. In response to the present I.B. Petition filed by the Petitioner, the Respondent has filed its counter affidavit through its Director, who is authorised to represent the Corporate Debtor. 15.1 It is submitted that the Respondent denies all and singular, the statements, allegations, submissions, contentions and averments made in the present petition. It is submitted that petition is misconceived, an abuse of the process of law and should be dismissed in limine with costs. It is further submitted that the present petition is filed with a malafide intention of pressuring the Respondent to agree to the unjust and unfair demands of the Petitioner and is an abuse of the process under the Code. 15.2 It is submitted that the alleged claim of the Petitioner is not maintainable, hence ought to be dismissed in limine. 15.3 It is submitted that the Petitioner by their letter dated 11.01.2013 to the Respondent expressed their desire to offer risk management and loss prevention services to the Respondent and subsequently, the Respondent placed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the correct forum for the dispute is before the Consumer Forum. Accordingly, the proceedings before NCLT, Mumbai were withdrawn by the Respondent. It is submitted that the Petitioner contends that the said case was simply withdrawn, however the correct facts are as mentioned above. 15.7 During the pendency of the company petition, the Petitioner had approached the Respondent for settlement talks and it was agreed that both sides would keep legal proceedings on hold in view of these talks. Accordingly, the Respondent had not filed any case with the Consumer Forum. However, on 02.01.2018, the Petitioner issued a statutory notice under the Code to the Respondent and the Respondent vide reply dated 11.01.2018 denied the existence of any alleged unpaid operational debt referred to by the Petitioner and stated that there exist serious bonafide disputes between the parties. 15.8 Thereafter, the Petitioner again called upon the Respondent for talks to settle the matter amicably and was given assurance to defer their legal action, however on or about 07.03.2018, the Respondent received a notice through the Advocate of the Petitioner that the Petitioner had filed the present Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be considered at the time of final disposal of the main petition. Meanwhile, the parties are at liberty to file their written submissions, if any, within a two weeks. The Order is reserved. The Applicant (Respondent herein) filed its written submissions in respect of the said IA on 11.06.2019 and reiterated the submissions made in the reply. It is submitted that the Applicant (Respondent herein) had issued legal notice dated 28.06.2016 to the Operational Creditor for the deficiency in services and the loss occurred and subsequently, the Operational Creditor also replied to the legal notice on 07.07.2016, which was further counter replied by the Corporate Debtor vide reply dated 22.07.2016. It is submitted that the aforesaid notices and reply of the Corporate Debtor to the Operational Creditor have been very candidly suppressed by the Operational Creditor with malafide intention in their Insolvency Petition, which reflects the pre-existing disputes between the Corporate Debtor and the Operational Creditor. Hence, it is submitted that the Operational Creditor has not approached this Tribunal with clean hands for which they are not entitled for any equitable reliefs. It is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non-payment for security services provided by the Petitioner to the Respondent as per the work order dtd 14.01.2013. 20.2 The above work order dtd 14.01.2013 duly signed by the Petitioner and the Respondent, consists of terms and conditions, wherein at point no. 11, it is stated that - In case of any theft from our factory due to security lapses or inefficiency, the same will be recovered from NISA's A/c. 20.3 The work order of 14.01.2013 is effective from 20.01.2013 to 19.01.2014, but it has not been extended. 20.4 The Operational Creditor issued notice on 30.09.2016 to the Corporate Debtor under Section 434(a) of the Companies Act for winding up the Corporate Debtor due to outstanding amount not paid. 20.5 The Petitioner has issued the demand notice for INR18,48,234.54Ps to the Respondent on 02.01.2018 in Form-3 to the Corporate Debtor Company, against which the Corporate Debtor vide its reply dated : 11.01.2018 denied the claims made by the Petitioner in the Demand Notice and placed certain outstanding issues based on which it was Petitioner who was in breach of the terms and conditions executed between the parties in work order dtd:14.01.2013. 20.6 Vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the law laid down by the Hon'ble Supreme Court in the above case is applied to the facts of the present case, it is established that there are clear disputes relating to breach of agreement as provided u/s 5(6) of the Code. The dispute regarding the breach of the terms and conditions of the work order dtd: 14.01.2013 signed by both the parties was raised by the Corporate Debtor long back prior to the issue of demand notice by Operational Creditor. Hence this is a clear case of pre-existing dispute between the Corporate Debtor and the Petitioner. 24. IA 240 of 2019 is filed by the Applicant (Respondent herein) under Section 60(5) of the IBC, 2016 against the Respondent (Applicant Operational Creditor herein) seeking necessary directions with regard to the Petition filed under Section 9 of IBC, 2016. Having heard the arguments and documents/papers submitted, we do not find any merit in this IA. Hence, the said IA 240 of 2019 is disposed of, as mentioned above. 25. Having heard the arguments advanced by the counsels appearing for both the sides and on perusal of the documents submitted by both the parties on record, we are of the view that there is a pre-existing dispute, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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