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TMI Blog2021 (10) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... he actual date of default is mentioned in the Section 9 Application as 19.12.2014. The last goods were supplied on 18.11.2014, admittedly the last payment was made on 25.11.2014 and the Application under Section 9 was filed on 09.05.2018. The record does not show any communication between 2015 and 2018. For all these reasons, the Application is barred by Limitation. Whether there is any Pre-Existing Dispute existing between the parties prior to the issuance of the Notice mandated under Section 8 of the Code? - HELD THAT:- A perusal of the Debit Note dated 24.03.2017 read together with the Goods Received Notes and the Laboratory Test Report of the goods supplied show that there is a Pre-Existing Dispute , prior to the issuance of the Notice under Section 8. The defence raised by the Corporate Debtor is not a sham defence and not a feeble or unsupported assertion. The record shows that there is documentary evidence filed in support of the defence. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was any dispute regarding the quality or quantity of the supply of steam coal and that there was any Test Report stating that the quality was substandard. Learned Counsel placed reliance on the Judgement of the Hon'ble Supreme Court in 'Mobilox Innovations Pvt. Ltd.' Vs. 'Kirusa Software Pvt. Ltd.' (2018) 1 SCC 353, in 'Rajiv Kumar Aggarwal' Vs. 'Panipat Texo Fabs Pvt. Ltd.', 2018 SCC OnLine NCLAT 656 and in 'Anoop Sushil Dubey' Vs. 'National Agriculture Co-operative Marketing Federation of India Ltd.', 2020 SCC OnLine NCLAT 674 in support of his contentions. 3. Submissions on behalf of the Learned Counsel for the Respondent: Learned Counsel submitted that the Debit Note dated 24.03.2017, the copies of Goods Received Note and copy of Laboratory Test Report of goods clearly demonstrate that the goods supplied were of inferior quality and hence the Adjudicating Authority was right in observing that there was a 'Pre-Existing Dispute' prior to the issuance of the Demand Notice under Section 8 of the Code. That the last payment received from the Respondent was dated 25.11.2014 and the Application under Section 9 was filed on 09.05.2018 and as three years has lapsed, the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2014 by the Respondent to the Appellant and Debit Notes were raised in the year 2017. This Application under Section 9 was filed on 09.05.2018. The details of invoices with their respective dates are reproduced as hereunder:- Sr. Invoice No. Amount (Rs.) Invoice Date 1 69(Invoice-1) 15,66,482/- 15.12.2013 2 47(Invoice-2) 6,79,993/- 19.12.2014 5. It is the main case of the Appellant that the Adjudicating Authority has erred in not taking into consideration the email dated 05.08.2015 sent by one Mr. Diwarker Rege from his official email ID with a copy to the Director. The material on record shows that the said Director has filed an Affidavit before the Adjudicating Authority on 03.10.2019 enclosing the Letter of Appointment of Mr. Diwarker Rege and stating that he was appointed only on 01.08.2015 which is four days prior to the said email. The Director also deposed in the said Affidavit that the said Mr. Rege was under probation and the subject email was not sent under his instructions. Curiously, after the email dated 05.08.2015, the Appellant has remained silent. There is no communication on record with respect to any payments 'due and payable', between the period 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitration proceeding relating to a dispute is pending between the parties. Therefore, all 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 assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 10. The definition of the word 'dispute', is in fact, illustrative, the 'Corporate Debtor' is not left with the only option of showing the 'existence of dispute' by way of a pending Suit or Arbitration but can exercise its right to show that goods and/or services supplied were substandard and deficient in quality. 11. Section 5(6) of the Code defines 'dispute' as follows:- "5. Definitions.-In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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