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TMI Blog2021 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... of dispute existing between the parties prior to issuance of Demand Notice and prior to filing of Section 9 Application. Hence, the same cannot be either entertained by the Adjudicating Authority or this Tribunal in a Summary Proceeding as held by the Hon ble Supreme Court in the matter of Mobilex Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. [ 2017 (9) TMI 1270 - SUPREME COURT]. There are no reason to interfere with the order passed by the Adjudicating Authority - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... der: "13. Since there exists a real dispute between the Applicant and the Respondent in respect of claims made vide invoices raised in the month of May, 2010, we are not inclined to admit this application. 14. In view of the above observations, CP(IB) No. 636/9/HDB/2019 is hereby rejected. No order as to costs" 8. The Respondent filed their Counter Affidavit before this Tribunal and submitted by admitting the fact that Respondent engaged the Appellant as forwarding Agent on 01.01.2010 to handle their voluminous SIC (Sea Import Consignment) capital consignment with necessary authority applicable to handle the same. It is further submitted that the dispute arises between the parties when the Appellant Company did not provide proper service and due to insufficient and delayed service, existence of dispute arose between the parties. The gross claim of the Appellant was ₹ 30,51,583.28. The Respondent on 06.07.2010 has remitted an amount of ₹ 1,89,000/- to the Appellant and disputed the balance payment on the ground of deficiency of service due to which the Respondent had to face huge financial loss. 9. It is also submitted that the Appellant vide e-mail dated 08.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the proceeding before the Adjudicating Authority, rightly rejected the Application filed by the Appellant. 13. We have perused the documents filed by the Appellant at Page-59, Annexure-P, the Appellant on 09.12.2010 issued a statutory Notice under Section 434 of the Companies Act, 1956 to the Respondent herein demanding an amount of ₹ 30,62,583/- on the basis of Invoices as mentioned in the Demand Notice. It is admitted in the Demand Notice signed by the Appellant that they have received a cheque for ₹ 1,89,000/- from the Respondent leaving a huge balance of ₹ 30,62,583/-. 14. In paragraph-8 of the Demand Notice, the Appellant admitted that they have addressed an e-mail dated 08.07.2010 stating that they are willing to bear the cost for an amount of ₹ 1,10,779/-. From the perusal of the Demand Notice under Section 434 of the Companies Act, 1956, the Appellant had admitted that they are willing to bear some costs. After the issuance of the above Demand Notice, the Appellant filed the Company Petition before the Hon'ble High Court of Andhra Pradesh seeking winding up of the Respondent-Company for the reasons that the Respondent failed and neglected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per schedule and on account of withholding documents and consignment or news print by the Plaintiff (Appellant), the Defendant (Respondent) being a News Paper industry was forced to buy the news print in the open market by incurring substantial money and further spent money once again and obtained the loan documents from the Bank appointed the Clearing Agent afresh and thereby incurred substantial loss towards demurrages and handling charges. Apart from these costs and business loss etc. totalling to ₹ 41 lakhs, it is also stated that the Respondent was forced to terminate the Appellant and appointing another Agent. Whereas the Appellant without rendering proper account and without reconciliation both the accounts maintained by the parties, the Appellant agreed to forgo a sum of ₹ 1,10,799/- as well as ₹ 2,60,000/- towards delay in clearing the consignment which amount is a paltry sum when compared to claim of ₹ 45 lakhs against the Appellant. 18. After transferring the matter from the Hon'ble High Court of Andhra Pradesh to the NCLT, Hyderabad by order of the Hon'ble High Court, the Appellant issued Demand Notice under Section 8 of IBC dated 21.02.2019 (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the dispute prior to the filing of the petition and prior to the issuance of Demand Notice. Therefore, in view of the provisions of IBC, where there is existence of dispute, the Application is not maintainable and liable to be rejected. Further, Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. -- (2018) 1 SCC 353) has categorically held: "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 has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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