9911796707
TMI Blog2020 (3) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... he quality of steam coal supplied. Further, the Petitioner in its petition in Column part4 (1)(b) Bullet Point No. (7) has stated that it made quite delayed payment on 25.11.2014. Such payment was received after rigorous follow up by the Operational Creditor. Thereafter, the Corporate Debtor did not even make a single payment to the Operational Creditor. Therefore, such raise prima-facie doubt about some pending dispute with regard to the quality of goods and or on existing dispute on terms and condition payment thereof, which are undisputedly of prior to issuance of the demand notice and filing of the present petition. The CIRP can be triggered in respect of Corporate Debtor only in situation where defence taken by the Corporate Debtor is found spurious and feeble. Which is not the case here as the Corporate Debtor has furnished the debit note and as well as copy of Coal Analysis Report based on lab test of coal supplied and the same was found of poor and inferior quality which are prima-facie evidence of dispute and such disputed question of facts are required to be agitated before a proper forum of Law, as it is out of purview of the I.B. Code to be adjudicated by this Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital of the company is ₹ 21,57,20,000/- (Rupees Twenty-One Crore Fifty-Seven Lakh Twenty Thousand). The registered office of the Corporate Debtor Company is situated at: Office Block1 A, 5 Floor, DB City, Corporate Park, Area Hills, Opp. M.P. Nagar, Zone-1, Bhopal - 462016, Madhya Pradesh, India. 4. It is submitted that the Corporate-Debtor-Company, i.e. M/s. Decore Exxoils Pvt. Ltd. made request to the Petitioner, i.e. M/s. Oriental Coal Corporation for supply of Steam Coal, for which, the Corporate-Debtor also sent a Purchase-Order email dated 28.10.2013 for its Mandideep Unit and another order dated 24.09.2014 for supply the Steam Coal meant for its Nagpur Unit. The same was supplied by the Petitioner as per the terms and conditions of the purchase Orders/ Invoices. 5. It is submitted that the material - Steam Coal was being delivered by the Petitioner/Operational-Creditor to the Corporate-Debtor from time to time by generating corresponding invoices and form No. 27C of the Income Tax was also obtained from the Corporate Debtor against the invoices. 6. It is submitted that the Operational-Creditor supplied the goods, i.e. Steam Coal to the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the issued invoices. b. ₹ 10,30,040/- (Rupees Ten Lakh Thirty Thousand Forty) is the amount receivable towards the interest on delayed payments outstanding on issued invoices. 13. The petitioner furnished the details of invoice-wise and date wise amount in respect of the Corporate-Debtor, which are described as under:- 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 14. In response to the present I.B. Petition, the Respondent/Corporate Debtor, i.e. M/s. Decore Exxoils Pvt. Ltd. filed its reply in which, the Respondent contends that the Petitioner has submitted untrue facts and suppressed the correct facts. It is alleged that the instant petition suffers from Suggetio-falsi and Suppresso-Veri and deserves to be dismissed. 15. Itis averred that the present petition is primarily time-barred hence the petition is not maintainable before this court. 16. It is cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and payable by the Respondent. 20. It is submitted that in order to substantiate Respondent s version of supply of goods of poor quality by the Petitioner, the Respondent got done coal analysis test from a certified lab. The report thereof has been enclosed and marked as Annexure WS-1. 21. The corporate debtor by filing an additional document has provided a copy of debit note dated 16.11.2015 raised by it, which has been made towards deduction of amount on account of inferior quality of 419.805 MT coal supplied. During the period of June 2014 to March 2014. Such debit note is supported by a copy of coal analysis report that reflects that the steam coal supplied in question, and the subject matter of present IB petition have been found of inferior quality. As per the report such lab tests were carried on 06.01.2014 which goes to show that there exists some pre-existing dispute between the petitioner the present oprational creditor and the corporate debtor with regard to inferior quality of coal supplied. 22. It is also a matter of record that the Petitioner could not be able to produce acknowledgement of service of the statutory demand notice of Section 8 of the I.B. Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h attracts serious controversy being disputed question of facts on authenticity and validity of such email. Hence, such cannot be treated as conclusive document of confirming the balance nor such letter/email can be purported to be a valid acknowledgement of debt liability under the provision of Section 18 of the Indian Limitation Act. 25. The Hon ble NCLAT in its decision in the matter of C. Shivakumar Reddy Vs. Vs. Dena Bank decided on 18.12.2019 has pleased to hold that even confirming of the loan in the annual balance sheet of the Corporate Debtor Company cannot be treated as acknowledgement of loan under Section 18 of the Limitation Act. For the convenience, the same Para is reproduced here in below: 10. Similar issue fell for consideration before the Hon ble Supreme Court in Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd. Anr. In Civil Appeal No.4952 of 2019. The said case was disposed of on 18% September, 2019. In the said case, the Hon ble Supreme Court noticed that the account of Respondent No.2 was declared NPA on 21st July, 2011 and subsequently, the State Bank of India filed two Original Applications before the Debts Recovery Tribunal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019 and Sagar Sharma Vs. Phoenix ARC (P.) Ltd. wherein, their Lordships have pleased to reiterate its stand as ruled earlier in its decision in B.K. Educational Services (P.) Ltd. Vs. Parag Gupta. Hence, it is held that the present I.B. Petition is hit by Limitation Act, thus, not maintainable. 27. We further examined the issue of the Pre-Existing Dispute in the present matter. It is evident that the Corporate Debtor has raised Debit Note on 16.11.2015 and also got tested the quality of steam coal supplied. Further, the Petitioner in its petition in Colum part4 (1)(b) Bullet Point No. (7) has stated that it made quite delayed payment on 25.11.2014. Such payment was received after rigorous follow up by the Operational Creditor. Thereafter, the Corporate Debtor did not even make a single payment to the Operational Creditor. Therefore, such raise prima-facie doubt about some pending dispute with regard to the quality of goods and or on existing dispute on terms and condition payment thereof, which are undisputedly of prior to issuance of the demand notice and filing of the present petition. 28. The Hon ble Supreme Court came to examine in its landmark decision in the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st reject the application under Section 9(5}(2X) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must being to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration 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 not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 30. By following the above stated decision and other rulings of the Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
