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TMI Blog2021 (6) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings under Section 9 of IBC, 2016 - application dismissed. - IB-2486/(ND)/2019 - - - Dated:- 1-4-2021 - P.S.N. Prasad, Member (J) And V.K. Subburaj, Member (T) For the Appellant : Himanshu Jain and Manish Kumar, Advocates For the Respondents : Sachin Aggarwal and Amit Rao, Advocates ORDER P.S.N. Prasad, Member (J) 1. This is an application filed by the Applicant Sealair Freighters International Private Limited through its Authorized Representative Mr. Anurag Sharma seeking to initiate corporate insolvency resolution process ( CIRP ) under Section 9 of the Insolvency and Bankruptcy Code 2016 ( the Code') of the Respondent Tescos Life care Private Limited for the alleged default on the part of the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Operational Creditor for the goods being dispatched again to Amsterdam and Frankfurt respectively, in furtherance of the Invoices number AE-00002 and AE-00001 Airway Bill numbered 618-4108-5144 and 618-4108-5133 and Terminal charges receipt were generated on 09.04.2017 in favor of the Corporate Debtor. v. It was further stated by the operational creditor that for making part payments, Corporate debtor issued Cheques bearing no. 984480 and 984479, drawn in favor of Sealair Freighters International Private Limited and drawn on Punjab National Bank, of amount ₹ 6,95,875/- (Six Lac Ninety-Five Thousand Eight Hundred Seventy-Five Rupees Only) and of amount ₹ 6,92,125/- (Six Lac Ninety-Two Thousand One Hundred Twenty-Five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 dated 08.04.2017, further the Corporate Debtor also states that the above said Invoices were issued to a different firm namely Amaze Enterprises and the same has never been issued in the name of Corporate Debtor. iii. The Corporate Debtor further alleges in its reply that the operational creditor has forged the original tax invoices and mentioned the name of the present Corporate Debtor on the invoices filed in the present application. iv. Further it was stated by the corporate Debtor in its reply that the operational creditor in his email vide dated 11.04.2017 (inadvertently mentioned as 11.04.2019 in reply) stated to the Corporate Debtor to ignore about the wrongly sent email regarding the disputed invoices. The Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor stating Please Ignore mail wrongly sending you and the email dated 12.04.2017 wherein, the Corporate Debtor mentioned about the mistake of the Operational Creditor regarding mentioning of the wrong companies name in the invoices issued to the Corporate Debtor. Afterwards, the email dated 27.05.2017, wherein the Corporate Debtor specifically stated that the Invoice No. AE-00001 and AE-00002 is not related to corporate Debtor which has already been informed to operational creditor. 8. It is further pertinent to mention that the existence of dispute regarding the invoices was raised by the Corporate Debtor in the Email Trail communication vide dated 11.04.2017, 12.04.2017 and 27.05.2017 between the Operational creditor and Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be......... 34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:...... (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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