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TMI Blog2021 (9) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... t Private Limited under Section 9 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a Code ) seeking for initiation of Corporate Insolvency Resolution Process ( CIRP in short) against the Corporate Debtor Company, namely, Pioneer Carbide Private Limited. 2. The Petitioner/Operational Creditor namely Surat Goods Transport Private Ltd. with a Company Identification Number (CIN)- U99999MH1977PTC020049 is having its Registered Office at Viraj Impex House,47, P.D. Mello Road masjid East, Mumbai-400009, India. 3. The Respondent/ Corporate Debtor, namely Pioneer Carbide Private Limited, was incorporated on 9th March, 1999 with CIN- U27101ML1999PTC005692. The Registered Office of the Corporate Debtor is situated at: Upper Baliyan, Umtru Road, Ri-Bhoi, Byrnihat, Meghalaya-793101, India. 4. It is submitted by the Petitioner that a work order dated 19.04.2017 was made by and between the Operational Creditor and the Corporate Debtor, binding the Operational Creditor to transport various goods like as Ferro Silicon from Upper Baliyan, Umtru Road, Ri-Bhoi, Byrnihat, Meghalaya-793101 to the various parts of India. The Operational Creditor duly transported the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018. 7. The Petitioner submits that a demand notice under Sec. 8 of Insolvency and Bankruptcy Code, 2016, was issued by the Operational Creditor on 3rd January, 2020 under the provisions of Insolvency and Bankruptcy Code, 2016. The demand notice dated 3rd January, 2020 is annexed herewith and marked as ANNEXURE A-1. 8. The Petitioner further submits that vide letter no. PCPL/156/19-20/195 dated 28.05.2019 by the Corporate Debtor, the Operational Creditor was asked to send the Statement of Account and it was also mentioned in the letter about pilferage of material and lodging of alleged claim with the Insurance Company. The Operational Creditor replied vide notice No. SGTPL-22 (B) dated 22.07.2019 stating that since the Corporate Debtor has insured the consignment against the transit risk involved in road transportation and also have taken up claim with the Insurance Company, the Corporate Debtor is not legally justified in withholding the payment of freight charges of the Operational Creditor for the transportation services rendered by them for the period 24.07.2015 to 20.06.2018. 9. The Petitioner submits that that the Corporate Debtor replied to the notice dated 22.07.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projected. The purported Company Application has been filed to mislead and suppress material facts and the deponent strongly disputes upon the same. 15. It is submitted by the Respondent that the Respondent Company, M/s Pioneer Carbide Private Limited is a company incorporated under the Companies Act, 1956, is engaged in manufacturing of Ferro Silicon and a registered Vendor of Steel Authority of India Limited since last 14 years and in this case is duly represented by its Director Mr. Shyam Sundar Agarwal. Copy of Company Resolution and ROC Master Data are attached herewith as Annexure-1 and 2 of the reply-on-affidavit. 16. The Respondent submits that the Operational Creditor was engaged by the Corporate Debtor for transportation of Ferro Silicon from the manufacturing unit of the Corporate Debtor to various plants of Steel Authority of India Limited situated in different parts of India and for that Work Order No. PCPL/156/17-18/145 dated 19.04.2017 was issued to Surat Goods Transport Pvt. Ltd. under clear acknowledgement and acceptance of Operational Creditor thereby amongst other as per Clause 4 of the said Work Order: In case of delay beyond delivery schedule, non- deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of account as a whole. Copy of certificate of loss vide NO. 17-18/5498 dated 19.12.2017 is attached herewith and marked as Annexure-12. 20. The Respondent further submits that a complaint was sent to the Director General of Police, Meghalaya vide letter dated 04.12.2018 to expedite the investigation by deputing a competent Police Officer to book the culprit to save Corporate Debtor s industry and enable it to supply its products to Steel Plants Govt. of India and now the matter was pending before Hon ble Nongpoh Court, Ri-Bhoi District in Case No. 153(7)2017 U/S 120(B)/420/34. Copy of complaint sent to the Director General of Police Meghalaya vide letter Dt. 04.12.2018 is attached herewith and marked as Annexure-13 and a copy of an Order in case No. 153(7)2017 U/S 120(B)/420/34 is attached herewith and marked as Annexure-14. 21. The Respondent states that the Operational Creditor even after knowing fully well that the Corporate Debtor had made a counter demand vide notice dated 21.07.2017 under section 10 under Carriers Act to the tune of ₹ 23,02,612.00 (Rupees Twenty Three Lakhs Two Thousand Six Hundred Twelve only) and without settling the same, have initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statement is attached herewith and marked as Annexure-22. 25. The Respondent submits that in the instant case, the disputed amount as claimed by the Operational Creditor is a disputed one as per work order dated 19.04.2017 supported by notice dated 21.07.2017 of Corporate Debtor under Sec 10 of Carriers Act and various other notices and reply and further to state herein that application under Section 9 of the Code on the basis of the claims for entitlement of interest, is not maintainable. 26. The Respondent prays that in the light of submissions made, the impugned application may please be rejected/dismissed by rejecting all the contentions and statement made by the Operational Creditor in the Company Application. 27. The Respondent/Corporate Debtor has further submitted in its written arguments the following: (i) That a perusal of the pleadings of the parties would reveal the existence of a pre-existing dispute. It is submitted that the applicant/ Operational Creditor was engaged by the Corporate Debtor for transportation of Ferro Silicon to various plants of steel authority of India limited vide order no. TCPL/156/1718/145 dated 19.04.2017 (Annexure no.3 of affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousand Six Hundred and Twelve) (Annexure 11 of Reply affidavit at Page No.32) without replying to the said notice nor paying the demanded amount, has raised the claim of ₹ 5,58,781.00 (Rupees Five Lakhs Fifty Eight Thousand and Seventy Hundred Eight One Only) vide notice dated 17.05.2019 (Annexure 15 at page no. 44 of Reply affidavit) to which Corporate Debtor had replied and demanded for verification of running account with demand settlement of losses of Corporate Debtor incurred on account of stolen goods arising due of the consignment code no. 8130004700 (Annexure No. 5 of Reply affidavit at Page No. 16) arising out of an invoice no. 0087 (Annexure No.4 of Reply affidavit at page no. 15). It is worth mentioning herein that till date the entire consignment in invoices no. 0087 dated 21.06.2017 is stuck up due to the rejection of said material by the IISCO plant vide their mail dated 13.07.2017 (Annexure no. 10 of Reply affidavit at page no. 27) and rejection of the claim by the insurance company on account of theft on 01.03.2021 (Annexure 2 of the counter reply of the Affidavit of corporate Debtor at Page 14). 28. That it is further submitted that the Operational Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application with costs to the Corporate debtor. 32. That the Corporate Debtor further submits that Operational Creditor has mentioned in its application at Part 4, that the amount has fallen due on from 17.03.2018 whereas the subject matter of the instant application (bill no. BL/813/1718/00561 is dated 20.03.2019, bill no. BL/813/1819/00034 dated 29.05.2018 and bill no. BL/813/1819/00057 dated 20.06.2018) which were raised after 17.03.2018 (date alleged to have fallen due) thus establishing the fact that pursuant to the agreement of the parties there existed a running account between the parties over which there existed a dispute and there were no separate transactions as alleged by the Operational Creditor. The malafide of the Operational Creditor in initiating the instant proceedings as a counter blast is further established by such act in as much as demand of an amount was sought to be made even before a bill/invoice was raised and the Operational Creditor is not even clear as to against which bill they are raising their demands and only on that account the application is liable to be rejected with costs to the Corporate Debtor. 33. That it is submitted that the bills in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense that the debts demand due and is not paid, the Insolvency Resolution process begins. In the present case and in the light of aforesaid discussion and in the light of Counter demand of the Corporate Debtor to the tune of ₹ 47,45,506.77 (Rs. Forty-Seven Lakhs Forty-Five Thousand Five Hundred Sic and Seventy-Seven Paisa Only) there is default and hence the Insolvency Resolution process cannot be triggered against the Corporate Debtor. 38. The Corporate Debtor relied on and submitted judgments of the following authorities: 1. Mobilox Innovation Pvt Ltd V. Kirusa Software Pvt Ltd; (2008) 1 SCC 2. Innovative Industries V. ICICI bank limited; (2018) 1 SCC 407. 3. Transmission Corporation of Andhra Pradesh V. Equipment s Conductions and Cables limited; (2019) 12 SCC 697 4. Kissan V. Vijay Nirman Pvt. Ltd; (2018) 17 SCC 662. 5. Kay Bouvet Engineering Ltd V. Overseas Infrastructure Alliance(India) Private Ltd; Civil Appeal No. 1137 of 2019 at Supreme Court of India. 6. Allied Silica Ltd V. Tata Chemical Ltd; (2021) 4 SCC 515. 39. That the Corporate Debtor humbly submits that in view of the attending facts and circumstances of the instant case and the law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Supreme Court has interpreted the expression existence of dispute in a different pretext not similar to that of the instant proceeding. The Applicant submits that there exists a dispute between the parties but the same relates to a different transaction, not at all related to the subject transactions as categorically reiterated by the Applicant. The amount relating to the subject transactions are all undisputed, and as such, the claims and contentions of the Corporate Debtor ought not be held sustainable and maintainable, the instant Counter is liable to be summarily dismissed with compensatory costs. v. That the instant Counter is an abuse of the process of the Court and is liable to be rejected. 41. The matter was taken up and heard on 06.01.2021; 23.02.2021; 03.05.2021; 22.06.2021 and 04.08.2021. ORDER 1. Heard the Counsels of both the sides at length, perused the Documents, Affidavits filed. It is found the following from the Documents, Affidavits submitted by both the sides: i. A work order dated 19.04.2017 was made by and between the Operational Creditor and the Corporate Debtor, binding the Operational Creditor to transport various goods like as Ferro Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.05.2018 and 20.06.2018. Subsequently, the Operational Creditor duly requested the Corporate Debtor in writing to pay the said dues vide letter dated 17th May, 2019. However, after receiving the said letter dated 17.05.2019, the Corporate Debtor neither gave any reply thereto nor any amount in respect of the above 6 (nos.) invoices. vi. The CD has filed its Bank statement (IOB) wherein, it is shown that the CD has paid ₹ 5,16,037.00 (Rupees Five Lakhs Sixteen Thousand Thirty-Seven Only) and ₹ 8,09,431.00 (Rupees Eight Lakhs Nine Thousand Four Hundred Thirty-One Only) to the OC on 14.09.2018 and 10.05.2018 respectively (Page No. 16 and 19 of the Reply Affidavit of the CD). These two payments have been made not only during the period of the six bills raised by the OC but also after the last bill dated 20.06.2018 raised by the OC. Hence, the contention of the CD that it is a running account, not paid on the basis of each invoice, is found to be correct. vii. The OC has admitted in its affidavit [counter reply to affidavit at paragraph no. 9, line no. 4] that the applicant submits that there exists a dispute between the parties but the same relates to different tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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