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TMI Blog2017 (10) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties having taken place, the respondent was bound to issue Form C and in any case this by itself cannot be said to be a settlement of dispute between the parties for enabling the petitioner to trigger the insolvency resolution process - the present case cannot be said to be a matter where there is no dispute raised by the Corporate Debtor enabling the petitioner to an order of admission. Rather all this correspondence which the petitioner has attached with the present case, emanated before the issuance of demand notice dated 25.07.2017. In response to the demand notice, the respondent has taken the stand relating to the quality of the goods. There being existence of a dispute relating to the quality of the goods, the instant petition is rejected. - CP (IB) NO. 71/Chd/Hry/2017 - - - Dated:- 3-10-2017 - Hon ble Mr. Justice R.P. Nagrath, Member (Judicial) For the petitioner : Mr. Vivek Dalal, Advocate For the respondent. : Mr.Vishnu Langawat, Advocate JUDGEMENT This petition has been filed by the petitioner-operational creditor in terms of Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short, to be referred hereinafter as the Code ) in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 245 M Grade 07.11.2016 10,000 245 S2 Grade 07.11.2016 10,200 246 Other bags 20.11.2016 30,000 259 S1 Grade 20.11.2016 30,000 259 S2 Grade 05.12.2016 32,000 291 S2 Grade 4. The respondent is said to have paid amount of invoice Nos. 198, 245 222 but did not pay for the remaining invoice Nos. 224, 246, 259 and 291 amounting to ₹30,15,548/-. The respondent-corporate debtor was supplied 3,20,000 bags on various dates from 10.10.2016 to 05.12.2016 along with Test Reports. Report of rejection of PP Bags was received by the petitioner from the respondent and the petitioner asked the respondent to return 30000 PP Bags but the same was not complied. The petitioner was, however, informed that the entire 3,30,000 PP Bags have since been used and hence form C was sent on 20.06.2017 in terms of Section 8 (4) of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of e-mails exchanged between the parties were also sent. 8. This demand notice dated 25.07.2017 was sent by speed post as per postal receipt at page 41 of the Paper Book and this was delivered to the respondent-corporate debtor on 01.08.2017 as per track report at page 42. The respondent sent reply dated 09.08.2017 to the demand notice copy of which is at pages 43 to 46 of the paper book 9. There is affidavit of Mr. Pravin Gupta, authorized signatory of the petitioner that the copy of this petition was sent to the corporate-debtor by Registered Post AD on 21.08.2017 and the affidavit is at page 256-A of the Paper Book. 10. When the matter was listed on 08.09.2017, notice of this petition was directed to be issued to the respondent for 03.10.2017 to show cause as to why this petition be not admitted. The respondent filed the reply to contest the petition by way of affidavit of Mr. Sanjeev Mishra the authorized representative of the Corporate Debtor. 11. It is stated that there is a dispute with respect to the quality of goods supplied by the operational-creditor. Immediately, on receipt of the goods, the respondent conveyed to the petitioner about the quality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 9 (3) (c) of the Code, the petitioner has attached certificate from the Bank of India dated 24.08.2017 which contains the payments received till date from the respondent-corporate debtor on 27.04.2016, 29.11.2016 and 02.12.2016. This certificate is issued with regard to the payments received from 01.04.2016 to 24.08.2017. The copy of the statement of Bank Account of the petitioner has also been annexed. It is contended that these entries have also been reflected in the ledger account of the respondent being maintained by the petitioner. 16. The petitioner being an operational-creditor is not bound to propose the name of Insolvency Resolution Professional in terms of Section 9 (4) of the Code. So the relevant column of the application in Part-III states that the petitioner-operational creditor requests this Tribunal to appoint the Insolvency Professional in terms of Rule 16 of the NCLT Rules, 2016 though it should have been Section 16 (3) (a) of the Code which reads as under:- (3) Where the application for corporate insolvency resolution process is made by an operational creditor and (a) No proposal for an interim resolution professional is made, the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. 19. The primary document to support this contention of the petitioner is the issuance of Form C dated 20.06.2017 by the respondent-corporate debtor in respect of all the seven invoices. I am of the view that the transaction between the parties having taken place, the respondent was bound to issue Form C and in any case this by itself cannot be said to be a settlement of dispute between the parties for enabling the petitioner to trigger the insolvency resolution process. 20. Learned counsel for the petitioner referred to e-mail dated 23.03.2017 sent to the respondent conveying that they are lifting 56,000 bags on Monday i.e. 27.03.2017 (page 92 of the Paper Book). But the respondent responded vide e-mail dated 24.03.2017 asking the petitioner to hold the vehicle placement till further information from the respondent. The respondent intimated that they were having internal discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in comparison to the required specifications. Vide e-mail dated 23.11.2016 at page 240, it was intimated to the petitioner that as per quality check report, S2 bag lot was rejected. 24. Learned counsel for the respondent also referred to the minutes of meeting between officers of both the companies held on 25.11.2016 as at page 215. The issues, those were explained in the said meeting, have been discussed in detail in the minutes. Learned counsel for the petitioner has challenged the correctness of this document on the ground that this does not bear the signature of officers who are shown to be present on behalf of the petitioner. Such a contention to challenge correctness of the document cannot be looked into for disposal of the petition in the summary proceedings by the Adjudicating Authority. This document is said to have been received by the petitioner with the e-mail from the respondent. Learned counsel has not referred to any response having been sent by the petitioner to this document challenging the correctness of these minutes. 25. Learned counsel for the petitioner has, however, not disputed the correctness of report of joint analysis done by the parties on 27.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest was made for making the payment. 29. At page 203 is e-mail dated 12.06.2017 sent by the petitioner to the respondent in which it was stated that the respondent is prolonging the matter unnecessarily and putting the petitioner under tremendous pressure. The petitioner requested the respondent to release the payment and not to force the petitioner to raise the issue with Commissionarate of Sugar, Pune, All India Flat Tape Manufacturers Associations, New Delhi (AIFTMA), ISMA - Indian Sugar Mills Association and AISTA -All India Sugar Trade Association, AIPMA All India Plastic Manufacturers Association, Mumbai, Indian Plast Pack Forum, M.P. Indore and they can also go to the court to secure the rights of small scale industries. 30. With the aforesaid serious issues, the present case cannot be said to be a matter where there is no dispute raised by the Corporate Debtor enabling the petitioner to an order of admission. Rather all this correspondence which the petitioner has attached with the present case, emanated before the issuance of demand notice dated 25.07.2017. In response to the demand notice, the respondent has taken the stand relating to the quality of the goods. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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