9911796707
TMI Blog2021 (5) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor/ Respondent No. 1) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'IBC') was admitted and Corporate Insolvency Resolution Process (hereinafter referred toas 'CIRP') was initiated against the Corporate Debtor. Mr. Kailash T Shah (Respondent No. 3) was appointed as the Interim Resolution Professional (IRP). 2. In this Judgment the parties are referred in their original status i.e. Honest Derivatives Pvt. Ltd. as Corporate Debtor and Solartex India Pvt. Ltd. as Operational Creditor. 3. Brief facts of this Appeal are that Corporate Debtor (Respondent No. 2) placed an order for supply of 500 MT Indonesian Coal vide their purchase order No. HDPL/16-17/586 dated 27.10.2016. Pursuant to this order the Operational Creditor, Solartex India Pvt. Ltd has supplied the required quantity of coal as per specifications to the Corporate Debtor's factory at Jamner District, Jalgaon, Maharashtra and issued 20 invoices from 28.10.2016 to 02.11.2016 for a total amounting to Rs. 15,73,279/-. The Corporate Debtor has not made any payment for supply of goods against the aforesaid invoices. As per the terms of the agreement, the Corporate Debtor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2016 as well as its e-mail dated 03.11.2016 informed the Operational Creditor that the supplied coal was about 4000 Gross Calorific Value (GCV) whereas the Purchase Order was for 5,400 GCV and the coal had a high moisture content. This fact was also admitted by the Operational Creditor in its letter dated 04.11.2016. It is also submitted that various lab test reports clearly show that the coal supplied was of a substantially poor quality and not as per purchase order. In support of this argument, the Appellant has filed e-mails dated 30.10.2016, 03.11.2016, 04.11.2016 and an analysis report of raw material by Central Testing Laboratory and the reply to the notice. 8. Ld. Counsel for the Appellant further submitted that the both Members of Adjudicating Authority (Mr. Harihar Prakash Chaturvedi and Prashanta Kr. Mohanty) were transferred with immediate effect vide separate orders dated 12.05.2020 and 30.04.2020. They have passed the impugned order on 28.05.2020 which is in contravention to Rule 152 of the NCLT Rules 2016. It was pointed out that the impugned order was passed more than six months after being reserved, which violates Rule 150 of the NCLT Rules, 2016 which mandates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor has neither issued any debt note nor sent any reminder that huge loss has been sustained by them. After receiving the statutory notice, a false suit claiming damages Rs. 03 Crores has been filed. Admittedly, the suit is filed after receiving the statutory notice, therefore, as per Section 8 (2) (a) of IBC, the suit was not pending before the receipt of statutory notice, therefore, it is not a pre-existing dispute. Reliance was placed on a judgment rendered by the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. (2018) 1 SCC 353 wherein it was held that the dispute should not be patently feeble legal argument or an assertion of unsupported by evidence. The dispute is purely spurious hypothetical and illusory. Therefore, Ld. Adjudicating Authority has rightly rejected the plea of the pre-existing dispute and admitted the application. 11. Ld. Counsel for the Respondent No. 1 further submitted that it is true that both the Members of the Adjudicating Authority were under transferred however, due to the COVID-19 pandemic, they could not travel and take charge of another bench. Hence, the matters which were already heard, in tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 30th October, 2016 STDPL informed the Applicant that the coal supplied and delivered by the Applicant was not in accordance with the specifications prescribed under the said PO and the Purchase Order dated 11th October, 2016 and that the use of such coal caused production losses to the Respondent and STDPL. Hereto annexed and marked as Exhibit "c" is a copy of the said email dated 30th October, 2016." 19. With the above admission in the affidavit, it is apparent that on 30.10.2016, STDPL, a sister concern of the Corporate Debtor has sent an e-mail to Group Concern of the Operational Creditor in regard to the Purchase Order dated 11.10.2016 whereas, the present claim is in regard to the Purchase Order dated 27.10.2016. It is also to be seen that there is no reference of this e-mail in the reply to the statutory notice. In the said e-mail it is not mentioned that it is in relation to the Purchase Order dated 27.10.2016. In the subsequent e-mail dated 03.11.2016, there is no reference to the earlier e-mail dated 30.10.2016. In such circumstances, we are of the view that the e-mail dated 30.10.2016 is not related to the transaction in question. 20. Now we have considered the email ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It means that after receiving the e-mail dated 04.11.2016 the Corporate Debtor was satisfied and kept quiet for about 15 months. It is only when they received a statutory notice that they filed a Civil Suit against the Operational Creditor. 23. With the aforesaid discussion, it cannot be held that there was any dispute in regard to the transaction in question. It seems that in order to avoid the liability, the Corporate Debtor through its reply to notice, tried to impress that there was a pre-existing dispute. 24. The Corporate Debtor has filed some analysis reports of raw material of Central Testing Laboratory (Pg. 65-84 Appeal Paper Book). These reports were never sent to the Operational Creditor and these reports are prepared by the Corporate Debtor's testing laboratory. Therefore, these reports cannot be considered to demonstrate that the supplied coal was not as per purchase order. 25. It is an admitted fact that the Corporate Debtor has received the statutory notice on 08.02.2018. Pursuant to the said notice, they sent the reply to notice on 17.02.2018. Thereafter, the Corporate Debtor filed a Civil Suit for damages against the Operational Creditor on 26.03.2018. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
