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TMI Blog2021 (5) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... to issuance of Demand Notice under Section 8 of the IBC and there is no illegality in the order passed by the Ld. Adjudicating Authority. The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 707 of 2020 - - - Dated:- 16-3-2021 - Justice Anant Bijay Singh Member (Judicial) And Ms. Shreesha Merla Member (Technical) For the Appellant : Mr. Kamal Ahuja and Ms. Sanchita Bhardwaj, Advocates. For the Respondent : Mr. Rohan Rajasekaran and Mr. Kartik Malhotra, Advocates. JUDGMENT JUSTICE ANANT BIJAY SINGH; This appeal has been preferred by Solenis Chemicals India Pvt. Ltd. Appellant /Operational Creditor, against the impugned order dated 05.05.2020 in CP/1456/IB/2018 passed by Adjudicating Authority, National Company Law Tribunal, Division Bench, Chennai whereby and where under, the Adjudicating Authority has dismissed the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short IBC) . 2. The facts giving rise to the instant Appeal is as under: i) The Appellant / Operational Creditor Solenis Chemicals India Pvt. Ltd. ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the Appellant 4. The Learned Counsel for the Appellant / Operational Creditor during the course of argument and his Written Submissions have submitted that the amounts admitted by the Respondent / Corporate Debtor firstly before the Hon ble NCLT, Chennai Bench, vide settlement offer dated 03.06.2019 for an amount of ₹ 27,37,803/- at page 502 to 554 of the Appeal Paper Book is the letter dated 03.06.2019 written by Shanthi Balamurugan, Group CFO address to M/s Solenis Chemicals India Pvt. Ltd.- Appellant / Operational Creditor caption offer for full and final settlement CP/1456/IB/2018 which is as under: 5. Learned Counsel for the Appellant also relied on the report of the Official Liquidator (at page 684 to 693 of the Appeal Paper Book Vol.-II) in CP/1456/IB/2018 in a proceeding before the NCLT, Chennai Bench between the Appellant- M/s Solenis Chemicals India Pvt. Ltd. V/s M/s Arjun Pulp Paper Private Limited- Respondent . 6. In this proceeding NCLT, Chennai Bench on 12-06-2019 directed the Official Liquidator to appoint a Chartered Accountant to reconcile the accounts for 11 Invoices as stated in page no 14 of the typed set filed along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more. 10. It is further submitted that the Adjudicating Authority failed to consider this aspect of the Judgment of the Hon ble Supreme Court in correct prospective manner and dismissed the Application under Section 9 of the IBC filed by the Appellant / Operational Creditor. 11. It was further submitted that the Account confirmations by the Respondent / Corporate Debtor was done much prior to issuance of demand notice which is records as follows: i. The confirmation letter of respondent dated 25.10.2017 along with ledgers of appellant, executed much before the issue of demand notice, are filed as annexure S with Application as under Section 9 are annexed at pages 149 to 157 of the Appeal Paper Book. ii) The Respondent / Corporate Debtor confirmed debt vide email dated 20-11-2017 for ₹ 55.51 lacs, which was presented before Hon ble NCLT, Chennai Bench, in Application under Section 9 of the IBC annexed as annexure U at page 158 to 163 of the Appeal Paper Book. iii) The Group CFO also confirmed debt for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Adjudicating authority taken note of the report by Official Liquidator, High Court of Madras dated 16.08.2019 at page 112 of the Reply after appointing an independent Chartered Accountant firm for reconciliation of accounts have dealt with dispute between the parties and have mentioned about the pre-existing dispute between the parties. 17. It is further submitted that while referring to page 219 of the Reply submitted that representatives of the Appellant namely, Mr. Michael Motcham 9Area Manager) Mr. Sunil had visited the factory (at Tirunelveli) of the Respondent and had jointly prepared a debit note for a sum of ₹ 8,20,833/- on account of price variation and had issued an email on the same day. However, the said debit note is currently disputed by the Appellant. 18. It is further submitted that the Ld. Adjudicating Authority while passing the impugned order recorded that the Application that precise documents were not filed by the Appellant to ascertain default. The said finding is based on the fact that the Appellant had unscrupulously filed pleadings and documents in parts and in utter disregard to Rule 55 of the NCLT Rules, 2016 and had altered its case a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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