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TMI Blog2021 (5) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... ness at H-1419, DSIDC, Narela, Delhi-110040 and G241, Sector 63, Noida, Gautam Budh Nagar, UP from time to time. ii. Pursuance to orders placed by Respondent, Petitioner had sold the material directly from their Business premises as stated above to them against respective invoices as ex-godown delivery. The transaction of sales and part payments received pertains to the Financial Year 2016-17 & 2017-18. Petitioner was having an account with Respondent which is a running account. As per the Operational Creditor's Books of account duly maintained in normal course of business the amount recoverable from opposite party is duly confirmed by the Corporate Debtor vide statement of confirmation of account and the said confirmation was received on Operational Creditor/s official email address from Respondent. iii. The Respondent Company through its Official had accepted the receipt of above sales without any defect and till date no compliant had been received regarding the quality or quantity of price of the goods sold to Respondent and had also released part payments as shown above. The Respondent had also confirm the statement of account vide e-mail. iv. That as per Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2019 of Respondent nothing was heard by, unfounded and does not reflect a pre-existing real dispute. The reply sent is wrong, hypothetical and without any basis. The said reply of Respondent is even contrary to their own e-mail dt. 13.03.2018 wherein account statement showing amount recoverable by operational creditor is confirmed and after this there has been no purchase or receipt payment by Operational Creditor. As such the reply submitted is malafide and false and contrary to the confirmation of accounts by them. 2. Consequent to the notice issued by this Tribunal the Corporate Debtor has filed its reply on 22.10.2019 in which the following contentions are raised: i. That at the outset, it is denied that the Respondents herein owes any debt to the Applicant, so as to qualify to fall within the meaning of "Corporate Debtor" under the scheme of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the I&B Code"). ii. The Applicant has indulged in gross and malicious suppression and concealment of facts to falsely portray the existence of an operational debt. The Applicant has not come with clean hands before this Hon'ble Tribunal and has suppressed mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above averments and challenged the claim of the Applicant, in the reply dated 08.03.2019. ix. Shockingly, none of these facts have been put forth in the application by the Applicant, with intent to score a march over the Respondent and to fraudulently coerce the Respondent into making unwarranted payment by threat of initiation of insolvency proceedings. This amounts to a fraud and abuse of the process of law. x. It is further important to note that the reliance placed by the Applicant upon the "Confirmation of Account" of the Respondent dated 13.03.2018 is misplaced and misleading as the same is not the correct factual position at the time of issuance of Demand Notice under Section 8 and at the time of filing of the instant Application. The Applicant has even claimed interest despite the fact that there was no understanding/agreement between the parties for charging any interest. xi. The said confirmation of accounts was issued on 13.03.2018, however thereafter the Respondent has upon the orders placed by the Applicant delivered goods and raised invoices to the tune of Rs. 1,13,84,168/- and therefore upon reconciliation of account, as on 24.06.2019, that is at the date of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 46(b) read with Section 31 of the CGST Act. The Truck employed were not even capable of carrying the weight as alleged in invoice there had been made for carrying less load of goods than alleged to be carried. iv. Thirdly no proof of delivery of goods to Petitioner on said sale document appears. Nor the goods had been actually delivered to Petitioner. Mere raising of Invoice without delivery of goods is not sale in terms of CGST Act/DGST Act and rather u/s. 182 of the CGST Act the same is an offence and u/s. 29 of the CGST Act is a ground for cancellation of Registration Certificate under CGST Act. v. Fourthly and surprisingly, the vehicle NO. shown to be used for delivering the goods in the Bill NO. 4 dated 14.06.2018 alongwith GR mentioning Truck No. HR-385-0 133 is not a Truck rather the same is a 'JCB CRANE" documentary evidence down loaded from site of www.vahan.nic.in (A site belongs to Govt. of India, Ministry of Road Transport and Highways) is annexed with rejoinder. This act is clearly a fraud on the Tribunal & intend to mislead this Tribunal which attracts action against him and imposition of heavy cost. vi. All the above submissions clearly makes out a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process." 8. The interim resolution professional ("IRP"), named in the list provided by the IBBI, is Mr. Devendra Umra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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