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TMI Blog2018 (1) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and sending debit notice are all factors seems to have raised in the reply for the sake of objection. No materials are available to prove that any further investigation regarding the demand made is necessitated or that the dispute raised is genuine - In the case in hand learned C.F.O failed to convince that a dispute regarding plea of discharge is true or that the dispute raised in the reply is genuine which require further consideration. In the present case, the Respondent-Corporate debtor not at all succeeded in proving the existence of a dispute regarding the supply of goods received by him whereas corporate debtor committed default by not making payment of outstanding dues along with interest to the operational creditor - it can be concluded that the objection raised by the corporate debtor is mere objection raising a dispute for the sake of dispute and unrelated to clause (a) or (b) or (c) of sub-section 6 of section 5 of the 'I B Code'. It appears that raising a dispute in the reply is for the sake of dispute and is vague and motivated to evade the liability. This petition deserves admission under section 9 of I B, Code - petition admitted - moratorium decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initially the respondent corporate debtor was making part payment of the said invoices for a sum of ₹ 20,04,79,817 (Rupees Twenty Crores Four Lakhs Seventy-nine Thousands Eight hundred Seventeen only) wherein the last of such part payments, being an aggregate sum of ₹ 27,50,000/- (Rupees Twenty-seven Lakhs Fifty Thousands only) was received by the petitioner between April and July 2017, leaving a principal sum of ₹ 4,75,28,807/- (Rupees Four Crores Seventy-five Lakhs Twenty-eight Thousands Eight Hundred Seven only) as outstanding dues payable to the petitioner. The petitioner has also issued the VAT confirmation certificate to the corporate debtor in respect of all the goods supplied to the Corporate Debtor, and the corporate debtor has also claimed CENVAT (Credit of Excise Duty) and VAT set off on the basis of the VAT Confirmation Certificate on entire amount/value of the goods supplied by the petitioner and to which the corporate debtor has never sought any reversal /variation of the CENVAT credit of Excise Duty and VAT Set off claimed by the Corporate Debtor. True copies of the VAT Confirmation Certificates issued by the Operational Creditor to the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute or the pendency of a suit or arbitration proceeding filed before the service of the demand notice. 7. The petitioner has delivered demand notice of unpaid operational debt/copy of Invoices on 09th August, 2017 to Corporate Debtor in prescribed manner as specified in Rule 5(2) of Insolvency and Bankruptcy (Application to Adjudicating Authorities) Rules, 2016 under Section 8(1) of the Insolvency and Bankruptcy Code, 2016 vide Annexure-'L'. Further, the petitioner has enclosed the proof of service of Demand Notice vide Annexure-'L' , which indicates that the demand notice was duly served upon Corporate Debtor on 11.08.2017 vide Track Consignment Report which is on page 94 of the petition. 8. Petitioner has also filed an affidavit to the effect that no notice has been given by the corporate debtor relating to a dispute of the unpaid part of the debt. The petitioner has further stated in the affidavit that corporate debtor has failed to bring to the notice of the operational creditor an existence of a dispute or the pendency of the suit or arbitration proceedings filed before the service of the demand notice. Petitioner has further alleged that even ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 9 of I B Code. The Form 2 contains written communication from the proposed insolvency professional. The Insolvency Professional has given a declaration that no disciplinary proceeding is pending against him. Therefore, requirement under section 9(5)(e) of I B Code also complied in the case in hand. 13. Before going into details of objections stressed on the side of the corporate debtor at the time of argument, it is good to read the reply notice issued by the corporate debtor to the petitioner. It read as follows:- We receive your demand notice dated 09.09.2017 (from now on referred as the, said notice ) wherein you have made certain demands which are finalised in our view. Prima facie, we say that your demand is far-fetched and is not based on the reality. You have relied on fabricated documents. We say that you have submitted documents which are manufactured at your end and which can be proved before adjudicating authority at the appropriate time. We say that by your own admission your dues are much lesser than the amount demanded for. We say that you have submitted documents which contradict your claim. We say that you have est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor issued reply which was produced by the petitioner. It is Exhibit K on page 90. In the said reply also no series dispute regarding the demand made by the petitioner seems to have raised. In the said reply also corporate debtor wish to challenge the very existence of the petitioner. It contends that petitioner itself is at the virtue of insolvency and bankruptcy, that petitioner is making a false claim, that petitioner is quoting the statutes for threatening the corporate debtor with malafide intention to make an unlawful monetary claim. However to support the said contentions that claim preferred by the petitioner is false no supporting evidence. On the other hand, the petitioner's ledger account copy maintained in the books of the corporate debtor Exhibit D , and Exhibit F the corporate debtor expressly acknowledged the debt claimed by the petitioner. Exhibit F is a statement of account for the financial year April 2015 to March 2016. The above-said acknowledgement itself disprove the contention of the corporate debtor that this claim is barred by Limitation. Moreover, the law regarding the application of law of Limitation in an application like in hand has been settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 bring 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 that the dispute is not a patently feeble legal argument or an assertion of a 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 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. 18. In the case in hand learned C.F.O failed to convince us that a dispute regarding plea of discharge is true or that the dispute raised in the reply is genuine which require further consideration as held in the above-cited judgment of Hon'ble Supreme court. 19. In the present case, the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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