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TMI Blog2022 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Process against the Optiemus Infracom Limited (henceforth Corporate Debtor) for default of payment outstanding debt of Rs. 8,68,515/- towards the supply of HTC Brand products i.e. 73 units of Mobile handsets. It is submitted that on mutually agreed terms and conditions between the parties, the Operational Creditor (OC) started supply of goods which was return of 73 Dead on Arrival (DoA) products. It was agreed between the parties that the payment will be made immediately to the OC within 7 days from the date of bill to the debtor and the agreement was oral in nature. 3. The Corporate Debtor (CD) made some payments against the invoices raised by the OC. He paid a sum of Rs. 5,17,861/- against the total purchase price of Rs. 11,97,451/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s indebtedness towards the OC by paying an amount of Rs. 5,17,861/- and is estopped from disputing the character of operational debt. It is only after the OC issued demand notice dated 17.07.2019, the CD started raising dispute with respect to the amount payable to the OC. Since the products have been sold by CD as distributor of the manufacturer and the OC as also Mron International Pvt. Ltd. never dealt with the manufacturer, it was only the CD who was under an obligation to settle the claims under the Dead on Arrival policy. 6. The CD avoided settling the claims of the OC as also other authorised dealers, the CD tried to evade discharging its contractual obligation by indulging in correspondence with the manufacturer. None of the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernational Pvt. Ltd. and OC has no locus to make any claim on behalf of said third party. 8. M/s. Mron International Pvt. Ltd. vide letter dated 07.02.2019 to the CD has acknowledged and declared to have settled all claims and demands and no amount being due and pending from CD. Further, two mobile handsets were not sold by CD to OC which have nevertheless been included in the invoice dated 17.12.2018. 9. Goods allegedly dead on arrival returned by OC is in violation and contrary to the DoA policy of HTC. OC filled "Customer Registration Form and Credit Application" to purchase the HTC products from CD, the said form contained detailed terms and conditions of sale and provided that the goods are returnable only as provided in the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased by the OC from Mron International Pvt. Ltd. The letter dated 07.02.2019 of Mron International Pvt. Ltd. does not wipe out contractual obligation of the CD to purchase the HTC products under the DoA policy. 12. We have heard the Ld. Counsel for the OC as well as the CD and perused the relevant documents as well as their written synopsis. As per Section 8 of the IBC, the CD has brought to the notice of the OC the pre-existing dispute for which he has submitted the email dated 22.02.2019 from the Company to the effect that all the DoA products are beyond 12 months from the date of manufacturing. Section 5(6) states as follows: 'dispute' includes a suit or arbitration proceedings relating to-- (a) the existence of the am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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