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TMI Blog2021 (12) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque for the same purpose was issued. The defense of corporate debtor regarding pre-existing dispute regarding payment of remaining amount is not supported by any documentary proof. Since the corporate debtor already-issued a cheque in order to clear its liability towards payment of GST, the claim of applicant deserves to be allowed. Application admitted - moratorium declared. - IB No. 2681/ND/2019 - - - Dated:- 14-12-2021 - Dharminder Singh, Member (J) And Sumita Purkayastha, Member (T) ORDER Sumita Purkayastha, Member (T) 1. The present Petition is filed under the Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter, The Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay the amount to applicant. Thereafter the applicant issued demand notice dated 13.09.2019 under section 8 of the Code for payment of ₹ 52,80,000/-. It is submitted that the respondent has not replied to the demand notice. 5. Upon issuance of notice, Ld. Counsel for the respondent appeared and filed reply to the present petition raising the following objections against the admission of the present petition: i. It is stated that deed of assignment dated 19.01.2018 clearly states that the price/consideration of ₹ 4.4 crore for the Trade Mark includes GST and word 'WHATSOVER' includes all the taxes including GST. It is submitted that the respondent had paid sum of ₹ 3,55,00,000/- and ₹ 41,00,000/- b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor vide reply to the demand notice dated 26.09.2019. There is also a criminal complaint filed by corporate debtor which is still pending. 6. The petitioner has filed rejoinder to the reply of respondent and submitted as follows: a) The case of the applicant is that the respondent issued cheque bearing No. 000696 amounting to ₹ 52,80,000/- with an endorsement that the cheque will be cleared subject to G.S.T. paid by Sanjay Kumar Chetwani for the invoice No. NPDT 001 dt. 06.02.2018. and the issuance of cheque for payment of GST override the deed of assignment. b) It is further stated that the applicant has not claimed the credit of TDS as the operational debt because this adjudicating authority is not a compete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor raised dispute over use of said Trademark sold by the applicant. The corporate debtor has failed to demonstrate that the GST was not payable by it, when a cheque for the same purpose was issued. The defense of corporate debtor regarding pre-existing dispute regarding payment of remaining amount is not supported by any documentary proof. 11. In respect of definition of dispute in the Code, Hon'ble Supreme Court has held in the case of Mobilox Innovative Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. 2018 1 SCC 353 inter-alia that: Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which required further investigation and that the 'dispute' is not a patently f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Interim Resolution Professional, namely Mr. Santanu Kumar Samantato meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Operational Creditor. 15. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1), shall follow in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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