9911796707
TMI Blog2019 (5) TMI 1881X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the goods supplied by the applicant company were not as per terms and were of inferior quality, such dispute was never raised by the corporate debtor prior to issuance of demand notice. That, there are/were no communication or evidence on record to establish goods supplied by the corporate debtor were of inferior quality. It is evident that the corporate debtor has agreed to clear the principal outstanding amount and has tried to settle the issue amicably but the applicant was reluctant. That, it will be open to the applicant to move before a court of competent jurisdiction for realisation/recovery of their dues instead of initiating resolution process which will have adverse effect on a going concern - That, keeping in mind the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99,30,000/-. 4. The applicant has submitted that it had supplied goods i.e. Lime Powder to the corporate debtor against various invoices issued from time to time. Further, there has been repeated request and reminder by the applicant company for payment of the outstanding operational debts of ₹ 17,48,135/-, however, inspite of the same, partial payment of only ₹ 2,75,000/- was received from the corporate debtor. 5. The applicant has further submitted that a demand notice under form No. 3 in accordance with Rule 5 of the Adjudicating Authority Rules was delivered on 14.03.2018 to the corporate debtor for payment of outstanding operational debt of ₹ 18,70,881/- (Rupees eighteen lacs seventy thousand eight hundred eighty-on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied by the corporate debtor were of inferior quality. 7. The applicant further relied upon the decision of the Hon'ble Supreme Court in the matter of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited (Civil Appeal Nos. 9405/2017) held that Adjudicating authority must determine whether there is a plausible contention which requires further investigation and that the term "dispute" is not a patently feeble legal argument or an assertion of fact not supported by evidence. Relevant para 44 of the said judgment is reproduced herein below:- "44. It is clear, therefore, that once the operational creditor has held an application, which is otherwise complete, the adjudicating authority must reject the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor account as maintained by the operational creditor 75-76 04 Invoice/demand notice as in form No. 3 77-147 05 Reply under Section 8 (2) of the Code given by corporate debtor pursuant to demand notice 148-149 06 Working of computation of default 150 07 Bank certificate obtained under Section 9 (3) of the IB Code from Bank where operational creditor usually received payments 151 08 Proof of service 153 9. The respondent has filed affidavit in reply inter alia stating that there were various issues as far as the transactions with the petition is concerned but the respondent considering the long term business relations did not give it in writing. 10. Heard at length the arguments of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To decide the issue, it will be desirable to notice the object of the I & B Code; object of 'Resolution' and what is expected from the Committee of Creditors; as summarized below: 1. The Objective of the I & B Code As evident from the long title of the I & B Code, it is for reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons to promote entrepreneurship, availability of credit, and balance the interest of all stakeholders. The recent ordinance explicitly aims to promote resolution over liquidation. 2. The objective of the I & B Code is Resolution. The purpose of Resolution is for maximisation of value of asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of hearing, on 01.03.2019, by way of affidavit, learned lawyer appearing on behalf of respondent submitted that they had issued cheques in favour of the petitioner against the total principal outstanding but the same has been refused by the petitioner. That, during the course of hearing also the corporate debtor made efforts for an amicable settlement were made by the Adjudicating Authority for an amicable settlement but the petitioner was reluctant to accept the cheques as is apparent from the order dated 01,03.2019. 16. It is evident that the corporate debtor has agreed to clear the principal outstanding amount and has tried to settle the issue amicably but the applicant was reluctant. That, it will be open to the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
