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TMI Blog2020 (11) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... y has rightly relied on the judgment of Hon ble Supreme Court in Mobilox Innovations Private Ltd. Vs Kirusa Software Private Ltd., [ 2017 (9) TMI 1270 - SUPREME COURT] have held that there was a pre-existing dispute between the parties and rightly dismissed the Application under Section 9 of the IBC. The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 231 of 2020 - - - Dated:- 3-11-2020 - [Justice A.I.S. Cheema] Member (Judicial) And [Justice Anant Bijay Singh] Member (Judicial) For the Appellant : Ms. Manasi Chatpalliwar, Mr. Gaurav Mahajan, Mr. Jayant Mehta and Mr. Srikar Pagadala, Advocates For the Respondent : Mr. E. Om Prakash, Sr. Advocate with Mr. G. Ananda Selvam, Advocate JUDGMENT Justice Anant Bijay Singh, The instant Appeal has been preferred by the Appellant (Operational Creditor) being aggrieved and dissatisfied by the Impugned Order dated 23rd December, 2019 in CP IBA/868/2019 passed by the National Company Law Tribunal, Division Bench, Chennai, whereby and whereunder an Application filed by the Appellant under Section 9 of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember, 2018, 28th November, 2018, 11th December, 2018, 12th December, 2018 and 13th December, 2018, respectively wherein the Appellant requested the Respondent to make payment of the outstanding amount. xii) In response to the emails sent by the Appellant in July, 2018, the Respondent sent an email dated 19th July, 2018, wherein it expressly acknowledged the pending payment due and payable to the Appellant from July, 2018 to October, 2018. For this acknowledged operational debt, the Respondent further assured a repayment plan to the Appellant and specified a schedule of release of the outstanding payment in the following manner: 1. July 2018- ₹ 28 Lakhs on or before 30/07/2018 2. Aug. 2018- ₹ 28 Lakhs on or before 25/08/2018 3. Sep. 2018- ₹ 28 Lakhs on or before 25/09/2018 4. Oct. 2018- ₹ 28 Lakhs on or before 25/10/2018 These acknowledged pending payments payable by the Respondent to the Appellant were duly reflected as a debit in the statement of account maintained by the Operational Creditor in its ordinary course of business. Copy of the email dated 19th July, 2018 at Annexure- A-7 page 312 (Vol.- II) of the Appeal Pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties were continuing with business. Moreover they have not insisted you over the contractual obligations saddled on you such as calibration of meters, which would have saved lot of money for my client. The portion is reproduced hereunder for your attention; (iii) QUIPPO will do the measurement and will get it verified by SOUNDARARAJA QUIPPO will provide calibration certificate of gas flow meters prior to commissioning. Calibration to be done once every year by QUIPPO 6. My client further states that their DEBIT NOTE bearing no. SRMAO/B/C68/18-19 Dated 28th November, 2018 is raised in line with above clause of the contract vis- -vis the Log book record and input unit record maintained by my client. The debit note is supported by a detailed data sheet, which may be refuted, if at all, by reconciling your log book and other records. Denying debit note without any evidential support is insincere and exposes your fake claims. 7. In view of the above, my client fully denies the liability to you as claimed by you in your notice, not to speak of the alleged acknowledgment of debt to the tune of ₹ 1.12 Crore in the light of your own confirmation on 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the impugned order is fit to be set aside and the Appeal is allowed. Submissions on behalf of the Respondent 5. The learned counsel for the Respondent during the course of oral arguments and also in the Written Submissions has taken interalia following grounds: - i) The Respondent (Corporate Debtor) has a textile unit at Karaikal, Pondicherry and was on the need for non-conventional power and had the source of gas supply by GAIL. ii) The Appellant (herein) provided two gas based Generators to generate electricity at Respondent s premises on monthly Lease and also undertook service. iii) The business between the parties were governed by two Lease Agreements and two Service Agreements which is at page Nos. 55, 75, 101 115 of the Appeal Paper Book Vol. II. iv) It was further submitted that the according to clause 5 of the Lease Agreements provided for billing and payment, the Appellant was entitled to raise fortnightly bills under clause 5.1 in respect of the Rental Charges. v) It is also provided under clause 5.2 for bills / credit note / debit note for recovery, charge of penalty, being payable or deductible (at page 78 of the Appeal Paper Book). A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is email dated 28.11.2018 (at page 301 of the Appeal Paper Book Vol. II) apart from other thing we will send our ledger account statement for reconciliation to arrive the final outstanding. x) It is further submitted by the Respondent that based on various communications back and forth, prior to Section 8 of the IBC Notice, the Ld. Adjudicating Authority has dismissed the Application under Section 9 of the IBC on pre-existing dispute ground and relied upon judgment in Mobilox Innovations Private Ltd. Vs Kirusa Software Private Ltd. 2018 (1) SCC 353 , para 51 is as under: 51. 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 is 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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