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TMI Blog2021 (3) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial to the Corporate Debtor due to which the Corporate Debtor was forced to purchase the goods at a higher price from the other sellers. The fact that a meeting was called upon on dated 16.02.2018 to address the issues relating to delay in supply and debit notes being issued by the corporate debtor substantiate the fact that there was a pre-existing dispute between the parties prior to the issuance of demand notice. It is clear from the decision of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [2017 (9) TMI 1270 - SUPREME COURT] that the dispute must exist before the receipt of demand notice. Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of ₹ 32,08,640/- (Rupees Thirty-Two Lakh Eight Thousand Six Hundred Forty only) i.e., Principal amount of ₹ 22,75,120/- and Interest of ₹ 9,33,520, as alleged by the applicant, towards the material supplied by the Applicant. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. The applicant submits that an oral agreement was executed between both the parties, wherein it was held that the CR Sheets, HRPO Sheets, HRPO slitted coils, HR Sheets, etc., was to be supplied by the applicant to the respondent Company. The applicant further submits that it was mutually agreed between the parties that the respondent shall be making payment towards the Invoices r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate Limited. ii. The Respondent submits that the Entire correspondence for purchase and supply of materials were done by the Respondent with Mr. Rajeev Rawat and Mr. Vikas Dhaiya who were employees of Allied Strips Limited. iii. That the Respondent through Allied Strips limited placed an order for 84 tons of material through different purchase orders and a series of emails were exchanged between the employees of Allied Strips Limited and Respondent regarding the supply of the material. iv. The Respondent submits that the applicant failed to supply the complete material against the Purchase orders placed by the respondent for 84 tons of materials, due to which the Respondent had to purchase material from secondary mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 cheques dated 03.07.2018 for ₹ 10,25,119.75/- for payment and adjusted the debit note of ₹ 12.5 lakhs Thus, the Respondent admitted the entire liability and showed no protest against the invoices raised, the material supplied and also admitted that it intended to pay ₹ 10,25,119.75/-. The applicant submits that the Minutes of Meeting dated 16.02.2018 is incomplete as it contains signatures of third party only as applicant never participated in that meeting. 4. The counsel for the Respondent has filed its written submissions relying upon the following judgements in respect to the submissions made in the reply: That the Supreme Court in Mobilox Innovations Private Limited VS. Kirusa Software Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RY, 2020, It was made clear that for filing application u/s. 9 of Insolvency and Bankruptcy Code 2016 in case the demand notice is delivered in Form 3 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 then the submission of a copy of the invoice along with the application in Form 5 is not a mandatory requirement, provided the documents to prove the existence of operational debt and the amount in default is attached with the application. 5. We have heard the Ld. Counsels for the Operational Creditor and Corporate debtor and perused the averments made in the application as well as the documents enclosed with the application. 6. On perusal of Application as well as the documents enclosed, the E-mail communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Form 3 or 4, as the case may be (Section 8(1)). Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)). What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing - i.e. it must exist before the receipt of the demand notice or invoice, as the case may be......... 34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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