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TMI Blog2022 (2) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the Corporate Debtor not to raise quality concerns from 01.08.2018 till 20.05.2019. No correlation between the quality of goods and Credit Notes have been established that the Credit Notes have been issued due to bad quality of goods supplied by the Appellant. In proceeding under Section 9, the Court has to satisfied that dispute truly exists in fact and is not spurious, hypothetical or illusory. The present is a case where we are satisfied that there is no dispute, in fact, prior to issuance of Section 8 notice. Appellant sent various communications to the Corporate Debtor for payments and stated that it will be compelled to go to NCLT for his claim, after which the Respondent first time on 20.05.2019 informed that there is deficiency in the goods supplied. There has been no communication regarding quality of goods after delivery of goods by invoices dated 09.01.2018, 16.04.2018, 24.05.2018 and 22.10.2018 and after more than six months period the Respondent sent communication regarding deficiency in quality of goods - If there was any deficiency in the quality of goods, Respondent ought to have brought it to the notice of the Appellant immediately after receipt of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant contends that the dispute which was sought to be raised by the Corporate Debtor was spurious, hypothetical and illusionary and there is no material to support the existence of any dispute. He further submits that the Adjudicating Authority committed error in holding that the said dispute was dispute within the meaning of Section 9 and rejected the application. It is submitted that the Adjudicating Authority itself in para 6 has noticed the judgment of the Hon ble Supreme Court in the matter of Mobilox Innovative Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. and has quoted the relevant portion of the judgment where it was clearly laid down that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority is to reject the application. It is submitted that for the first time after the issue of invoices email was sent by the Corporate Debtor on 20.05.2019, where the dispute of deficiency in quality of goods was raised prior to that there was several WhatsApp chat where the Respondent Corporate Debtor has not raised any issue of deficiency in quality of goods and have not pointed out any such dispute in the communication. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r there was any dispute actually in fact exists in between the parties prior to issuance of Section 8 notice or the dispute sought to be raised by the Respondent is only an illusory dispute. 7. The last of the four invoices was the invoice issued on 22.10.2018 and there are communications between the parties regarding non-payment. The Appellant has brought on the record WhatsApp chat between the parties on 01.11.2018 whereby Corporate Debtor was informed that they have not made payments nor responded to the calls. There are 34 communications between the Appellant and the Corporate Debtor before email dated 20.05.2019 was sent by the Corporate Debtor. It is useful to notice only few of them to know the actual happening which took place between the parties. On 13.03.2019 following was the message sent by the Appellant: I have no alternative but file a case against you in NCLT. Today is the last call from me afterwards we will meet in court. 8. The immediate reply of the said message was sent by the Corporate Debtor on 13.03.2019 itself, which is to the following effect: Modekji factory is closed due to pollution I am running to Chandigarh and Haryana pollution board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sending you reminders for payments not even once did you talk about product quality concerns nor did you raise any of these concerns when you were promising us payments over the phone whenever we contacted you for the same. And now, after receiving a REMINDER for the 34th time have you actually voiced concerns regarding quality which is not only vague but completely unacceptable simply unreasonable it is nothing but trying to find a way to further delay default on our payments. 7. Also, we would like to point out that we have What s app SMS records from almost 2 years where you have promised us payments, which obviously have not come on time the only thing we have received is different reasons or points to delay the said payment. Not even once in those conversations have you talked about inferior quality, or the above-mentioned claimed terms even once. So, it s evident that there were no such terms, nor any such quality issues this mail has been written only when we said that we will now approach the courts for a redressal against our valid dues. 12. From the correspondence which took place between the parties it is noticed that before 20.05.2019 there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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