9911796707
TMI Blog2021 (8) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... SPA executed on 25.05.2016, was never revoked hence Ms. Radhika Singh is duly authorized to filed the present application. Moreover, there is a pre-existing dispute among the parties and the same is validated as per emails correspondences exchanged during the year 2011-2012 wherein the corporate debtor had raised dispute with regards the inferior quality of goods. The disputes have also been raised by the corporate debtor in its reply to the winding up notice and demand notice under Section 8 of IBC of the applicant. This leaves no doubt that the so called dispute raised by the corporate debtor is not merely a moonshine dispute. A conclusion can be drawn that there is Preexistence dispute which was raised by the corporate debtor time and again in terms of the agreement executed between the parties much prior to the notice served under section 8 of I B Code by way of its reply to statutory notice for winding up as well reply to winding up petition and also in reply to Section 8 notice under IBC. It is a fit case to reject the application under section 9 of the I B Code. Application dismissed. - COMPANY PETITION NO. IB-239/ND/2019 - - - Dated:- 3-8-2021 - DR. DEEPTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of corporate debtor during the period of 15.03.2012 to 21.03.2012. The invoices mentioned the payment conditions as transfer period of 90 days . The applicant states that the corporate debtor despite agreeing to the said conditions did not make payments and violated the agreed payment terms by delaying payments. Emails were also exchanged between the parties, wherein the corporate debtor made assurances of payment. The email communications exchanged between the parties are annexed. 6. The applicant submits that the corporate debtor started delaying in making payments from the year 2010 onwards. Thereafter, considering the market conditions and delayed payments of the corporate debtor, the applicant relaxed the payment plan, for invoices raised in June 2012. The payment plan stipulated three equal installments. The applicant also made a separate payment plan for specific invoices. However, despite flexible payment plans the corporate debtor failed to pay the outstanding amount and the unpaid debt was increasing. 7. The applicant as per email dated 28th September 2012, wrote to corporate debtor with regards to non-payment and also sent various reminders. The corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elve Only) within 21 days from the date of receipt of the said notice. The applicant further stated that after the receipt of the statutory notice, the corporate debtor sent reply dated 05.10.2015, disputing the claim of the applicant and alleging wrong, false and concocted stories without adverting to unequivocal and unambiguous acknowledgment of debt. 11. The applicant filed a company petition No. 1085 of 2016 for winding up of the corporate debtor before the Hon ble High Court of Delhi. The corporate debtor filed reply to the petition, to which rejoinder was also filed. The copies of the winding up petition along with reply and rejoinder filed are annexed. The Hon ble Delhi High Court transferred the said petition vide order dated 08.05.2017 to NCLT, New Delhi bench. During this period, the Hon ble Principal Bench vide order dated 16.11.2017 recorded as under: There is no pleadings filed in accordance with the Rules known as Companies (Transfer of pending) Rules, 2016 and Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is thus no option except to dismiss the petition with liberty to the petitioner to file a fresh one on the same cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledgement of any outstanding amount but with regards the quality issues for goods supplied. Even the emails pertain to the period of the year 2014 and the present application is filed in 2019.Moreover, no document has been filed by the applicant to show any document constituting an acknowledgment of debt. The order dated 16.11.2017, granting liberty to file fresh petition on same cause of action does not waive the requirements of law relating to limitation. d) That the application is not maintainable on account of pre-existing dispute pending between the parties and all legitimate dues of the applicant had been have paid off. Moreover, the disputes for quality of goods and high prices by applicant had been raised much prior to issuance of Section 8 of the code, which was also acknowledged and accepted by the applicant for which applicant offered reduction of dues. The dispute on quality, nonpayment of amounts was explicitly stated in reply dated 05.10.2015 of the winding up notice dated 16.09.2015.Further also detailed in reply dated 07.07.2017 issued by the corporate debtor to the demand notice dated 03.07.2017.The copies of reply dated 05.10.2015 and 07.07.2017 is annexed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e winding up proceedings were initiated in the year 2016 and the proceedings were transferred to NCLT New Delhi bench vide order dated 08.05.2017. Hence the claim is not time barred. Further the SPA executed on 25.05.2016, was never revoked hence Ms. Radhika Singh is duly authorized to filed the present application. Moreover, there is a pre-existing dispute among the parties and the same is validated as per emails correspondences exchanged during the year 2011-2012 wherein the corporate debtor had raised dispute with regards the inferior quality of goods. The disputes have also been raised by the corporate debtor in its reply to the winding up notice and demand notice under Section 8 of IBC of the applicant. This leaves no doubt that the so called dispute raised by the corporate debtor is not merely a moonshine dispute. The Hon ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited in Civil Appeal No. 9405 of 2017 held that : the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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