9911796707
TMI Blog2019 (1) TMI 1935X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Petitioner is not sure about its claims and have mentioned different and inconsistent calculations of the alleged excess amount. The correct position of the outstanding debt has not been revealed to this Bench till date. It is clear that a dispute as to the existence of the amount of debt is in existence, and the same has been raised by the Corporate debtor time and again. There was a dispute or misunderstanding between the parties. Rather, in the present case, it is demonstrated that this is not a case where merely feeble legal argument was made; but this is a case where sufficient evidences are placed on record to substantiate the dispute time and again. On separation of grain from the chaff, it is evidenced that this is not a case of raising a spurious defence by the debtor, but a duly substantiated case of existence of dispute . Having considered the totality of the facts and circumstances mentioned above, the existence of dispute prior to issue of Demand Notice is established. Accordingly, the Petition does not deserve Admission. Finally, a conclusion is hereby drawn that this is not a case where the impugned Debt and the alleged default was free from existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assigning the contracts ₹2,00,000/- (Note: the advance amount is subject to success of assignment otherwise it is fully refundable). On receipt of the Bank sanction Letter 50% of the balance fee, which will be adjusted against the total amount of fees including success fees i.e. ₹27.88 Lakhs On First disbursement of the loan Balance amount of ₹27.88 Lakhs Delayed interest 18% p.a. and service tax is applicable. B) Submissions by the Operational Creditor : 5. The Operational Creditor as per the mandate letter assisted the Corporate debtor to raise funds from Indiabulls Housing Finance Limited to the extent of ₹17.00 Cr., which was sanctioned by Indiabulls Housing finance Limited vide their Email dated 29.04.2016. Therefore, the transaction as per the Mandate letter was completed and the Corporate Debtor was to pay 50% of the balance fee to the Operational Creditor as pleaded by the Learned Authorised Representative. Thereafter, in May, 2016, Indiabulls Housing Finance limited disbursed the sanctioned loan around ₹17.00 Cr. and hence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Notice dated 23.10.2017 in Form 3 Form 4 as per rules u/s 8 of the IBC seeking the payment of aforesaid amount due. The notice has been duly served upon the Corporate Debtor. The Corporate Debtor has replied to the demand Notice vide letter dated 31.10.2017 raising various disputes for the first time in the amount claimed. In the Demand Notice, the claim is pertaining to the invoice dated 30.04.2016, issued by the Operational Creditor to the Corporate Debtor, as contended by the Learned Authorised Representative. 9. It is finally argued that since the Debtor is not making the payment and all the procedural formalities have been complied with, this Petition/Application may be Admitted for the initiation of the CIRP. C) Contentions of the Corporate Debtor: 10. In the reply letter dated 31.10.2017, the Corporate debtor outrightly rejects the claim of the Operational Creditor stating that there was no role played by the Operational Creditor in availing the loan facility from Indiabulls. The Invoice No. 2016- 17/SHPL/01 dated 30.04.2016, as claimed by the Operational Creditor to have been issued to the Corporate Debtor, the Corporate Debtor contends, is fictitious and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operational creditor says that it was on the request of the Corporate Debtor to keep the cheques on hold, they were not presented to banks. E) Sur-rejoinder by the Corporate Debtor: 13. The Corporate Debtor has submitted its Affidavit in Sur-rejoinder to the Application. It is contended that the document showing the cash book entries produced along with the rejoinder are an afterthought to show the payment of ₹15,00,000/-. No documentary evidence has been produced on record to show the service of the alleged invoice to the Corporate debtor. For the first time in the rejoinder, the Operational Creditor came up with the assertion that 10 cheques were issued by the Corporate debtor to the Operational Creditor. It is further asserted that if the Operational Creditor was the Direct Sales Agent (DSA) to Indiabulls, then Indiabulls must have paid commission to the DSA. However, in the present case, Indiabulls has not paid any commission to the operational Creditor, which further asserts the fact that the Operational Creditor did not get the loan sanctioned from Indiabulls. The corporate Debtor denies all the payments, including TDS made against the professional fees of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor, the Operational Creditor would have incorporated the same under the head Trade Receivables in its Balance Sheet. The claims made by the Operational Creditor do not corroborate to its own financial statements for the financial year 2016-17. Therefore, it can be noticed that the present case in hand clearly falls under the dispute as to the existence of amount of debt . 17. Considering these facts and circumstances, in my humble opinion, there is a preexisting dispute as defined under section 5(6) of the IBC which reads as follows: (6) dispute includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty; 18. In the present case, it seems that the Petitioner is not sure about its claims and have mentioned different and inconsistent calculations of the alleged excess amount. The correct position of the outstanding debt has not been revealed to this Bench till date. It is clear that a dispute as to the existence of the amount of debt is in existence as discussed supra, and the same has been raised by the Corporate debtor ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now very much settled as held by several Hon'ble Courts, most importantly the decision of Mobilox Vs. Kirusa (supra) in which an observation has been made that the Adjudicating Authority is to examine at the stage of admission that whether there is a plausible contention which requires further investigation and on assertion of fact a dispute is supported by evidence. The expression used in Section 8(2) of the Insolvency Bankruptcy Code existence of a dispute, if any is very significant because the Legislature is deemed not to waste its words or to say anything in vain hence every word is significant, as held in Mithlesh Singh Vs. Union of India, (2003) 3 SCC 309. It is also important to clarify that if the intent of the Legislature was to limit the dispute to only a pending Suit or Arbitration (refer Section 5(6) Definition of Dispute) then there was no requirement to add in Section 8(2)(a) of the Code existence of a dispute, if any . A harmonious and co-joint reading is, therefore, required. A view has also been expressed that the definition of dispute as per Section 5 of Insolvency Bankruptcy Code is illustrative and not exhaustive. It is held that a dispute must n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
