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TMI Blog2022 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... in person to explain why they should not be blacklisted for non-adherence of tender conditions and violation of Drugs and Cosmetics Act. There is a pre-existing dispute with regard to the calculation of dues and that the Writ Petition with regard to the blacklisting of the Operational creditor for the supply of non-standard quality of drugs supplied by them is still pending before the Hon ble High Court of Kerala. The said fact is suppressed by the Operational Creditor in this application, as rightly pointed out by the Corporate Debtor/ Respondents - there are no merit in this application warranting admission for initiating Corporate Insolvency Resolution Process against the Respondent. Hence, this application which is bereft of merit is dismissed. It is stated that the Operational Creditor (Sic) (Corporate Debtor) has neither replied nor disputed the Demand Notice till date. Whereas, in the application on Page 23, the applicant itself has produced a reply received by them from the Corporate Debtor Kerala Medical Service Corporation Limited stating the pre-existence of dispute. The applicant has suppressed many facts and tried to abuse the process of law by filing this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made by the Corporate Debtor to the Operational Creditor throughout the business period was to the tune of ₹ 6,27,10,875/- (Rupees Sixty Crore Twenty-Seven Lakh Ten Thousand Eight Hundred Seventy-Five only) and the corresponding supply made to the Corporate Debtor was for a value of ₹ 7,02,08,303/ (Rupees Seven Crore Two Lakh Eight Thousand Three Hundred and Three Only. The balance amount of ₹ 74,97,427/- (Rupees Seventy-Four Lakh Ninety Seven Thousand Four Hundred Twenty-Seven Only) has not been paid by the Corporate Debtor. Since the Corporate Debtor failed to make payments to the Operational Creditor the latter stopped supply of drugs since 2014 and filed a claim application. 5. There was an Arbitration between Operational creditor and Corporate Debtor.The Corporate Debtor failed to adhere to the Order passed by the Arbitrator on 19.04.2018. Hence, Recovery Certificate No. M.S.E.F.C.592/2014 dated 19.04.2018 was issued by the Madhya Pradesh Micro and Small Enterprises Facilitation Council for the recovery of the amount due to the Operational Creditor. ₹ 3,45,96,652/- is stated to be the Outstanding Debt due and payable by the Corporate Debtor as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of disposal of the appeal. 8. The learned counsel for the Corporate Debtor further argued that in G.O.(Rt) 1401/2015/H FWD dated 14.5.2015 the Appellate Authority replied that despite three notices issued to the applicant, they did not appear before the Appellate Authority and therefore the appellate authority decided the appeal on merits after considering the submission in the appeal petition and the submissions of the respondent. The applicant then filed W.P.(C) 27755/15 against the appellate order. Without going into the merits of the case, learned Single Judge of Hon ble High Court by a judgment dated 15.09.2015 fixed date of hearing as a final opportunity. Thereafter, having heard the appellant, the appellate authority vide G.O. (Rt) No. 3862/2015/H FWD dated 01.12.2015 again rejected the appeal filed by the appellant. Against the dismissal of this appeal, the applicant further filed W.P.(C) 14640/16 before the Hon ble High Court of Kerala. It is further stated that the Corporate Debtor and the Appellate Authority have filed their counter-affidavits and that this Writ Petition is pending disposal before the Hon ble High Court. 9. The Corporate Debtor stated that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor, therefore, filed WP[C] 25454f18 before the Hon ble High Court of Kerala challenging the Order of the MSEFC. The Learned Division Bench of the Hon ble High Court dismissed the WA 1667/18 holding that even though the Hon ble High Court of Gujarat and Kerala may have jurisdiction to entertain a challenge to the Award of the MSEFC, Gujarat, on the principle of forum conveniens, it is better to relegate the appellant in WA 1667/18 to approach the Hon ble Gujarat High Court which was the more appropriate forum in the facts and circumstances of that case. However, while noting the dismissal of WA 1667/18 on the principle of forum conveniens, the Learned Division Bench considering the facts and circumstances of WP[C] 25454/18 held that it should be considered by a Learned Single Judge and relegated it to be posted before the Learned Single Judge for disposing it on merit. The learned counsel thus claimed that from 20.08.2018 the so-called operational debt is in dispute by the respondent and is pending consideration on merit in WP (C)25454/18 by the Hon ble High Court of Kerala. However, this relevant, pertinent, and jurisdictional fact has been suppressed by the applicant in the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tics Act 1945 and the rules made thereunder, Purchase orders were placed with the applicant. The applicant supplied goods to the Corporate Debtors warehouse as per the instruction on the purchase order and the Corporate Debtor duly received and gave acceptance of receiving the supplied goods on the payment order. 15. On receipt of the supply of drugs and medicines, the Corporate Debtor had to make payments to the Operational Creditor. For the period between the Financial Year April 2010 to March 2014, the amount in respect of business transaction payable was ₹ 7,02,08,303/-. After making part payment, ₹ 74,97,424/- was pending from the Corporate Debtor. From 2014, the Operational Creditor stopped its supply to the Corporate Debtor due to non-payment of the amount due. As per the applicant s application before the Madhya Pradesh Small and Micro Facilitation Council, the arbitrator passed an order dated 19.04.2018, where it is stated that the total payment made by the Corporate Debtor to the Operational Creditor was at a value of ₹ 0/-. A Recovery Certificate was also issued by the M.P.Micro and Small Enterprises Facilitation Council on 05.01.2019. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor filed a Writ Petition [C] No. 14640/16 before the Hon ble High Court of Kerala against the order of blacklisting them. The said Writ Petition was admitted and is pending disposal before the Hon ble High Court of Kerala. 19. Considering the developments of the litigation between the parties, as pointed out by the learned Counsel for the Respondent, we find that there is a pre-existing dispute with regard to the calculation of dues and that the Writ Petition with regard to the blacklisting of the Operational creditor for the supply of non-standard quality of drugs supplied by them is still pending before the Hon ble High Court of Kerala. The said fact is suppressed by the Operational Creditor in this application, as rightly pointed out by the Corporate Debtor/ Respondents. Hence, we do not find any merit in this application warranting admission for initiating Corporate Insolvency Resolution Process against the Respondent. Hence, this application which is bereft of merit is dismissed. 20. In the affidavit filed by the applicant on 30.11.2021 in para.3, it is stated that the Operational Creditor (Sic) (Corporate Debtor) has neither replied nor disputed the Demand Notice til ..... X X X X Extracts X X X X X X X X Extracts X X X X
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