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TMI Blog2022 (3) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-2022 - Rohit Kapoor, Member (J) And Harish Chander Suri, Member (T) For the Appellant : Jitendra Patnaik, Advocate For the Respondents : Shaunak Mitra and Patita Paban Bishwal, Advocates ORDER Harish Chander Suri, Member (T) 1. This Court convened via video conferencing. 2. This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 ('the Code') by Shree Ram Cargo Private Limited ('Operational Creditor'), a Company incorporated under the Companies Act, 1956, having its registered office at 3A B, Archies Court Shankar Shet Road, Pune-411037, by Pawan Kumar Lakhotia, duly authorised vide Board Resolution dated 19.07.2019 1Annexure 2, Page-17 of the CP(IB) No. 1628/KB/2019 seeking to initiate Corporate Insolvency Resolution Process ('CIRP') against Rajat Ispat Private Limited, a Company incorporated under the Companies Act, 1956, having its registered office at Marshal House, Room No. 234, 2nd Floor, 33/1, Netaji Subhas Road, Kolkata-700001, West Bengal ('Corporate Debtor'). 3. The present petition was filed on 23.09.2019, before this Adjudicating Authority on the ground that the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable in law and no amount of operational debt as claimed by the Operational Creditor is due. (ii) The Application is barred by limitation and the Petitioner has no locus standi to file the Application or to make any claim against the Corporate Debtor. (iii) The Petitioner has suppressed the letter dated 10.01.2018 issued by the Corporate Debtor to the Operational Creditor. In the said letter the Corporate Debtor had categorically mentioned that the goods supplied by JSPL against back to back arrangement were of extremely substandard Quality. Further, their consent to pay the outstanding of JSPL was based on the condition that the goods to be supplied to them would be of agreed specification and quality. Annexure-A of the Reply (iv) The Corporate Debtor in the said letter dated 10.01.2018 had also withdrawn their consent to have the outstanding transferred and called upon the Operational Creditors to return their cheques. Ibid (v) Further, in response to the said letter by the Corporate Debtor, the Operational Creditor in its letter dated 29.01.2018 had recorded that they are cancelling the back to back arrangements and they shall make the claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to the admitted dues of ₹ 37,11,507/- (Rupees Thirty Seven Lakh Eleven Thousand Five Hundred Seven only), the Corporate Debtor has made the payment of ₹ 8,00,000/- (Rupees Eight Lakh only) on 09.10.2016 and of ₹ 10,00,000/- (Rupees Ten Lakh only) on 25.10.2016, thereby, leaving a balance due of ₹ 19,11,507/- (Rupees Nineteen lakh Eleven Thousand Five Hundred Seven only). (iii) On 23.10.2016, the Corporate Debtor issued a cheque for ₹ 18,74,390/- (Rupees Eighteen Lakh Seventy Four thousand Three Hundred Ninety only) against the balance of ₹ 19,11,507/- (Rupees Nineteen lakh Eleven Thousand Five Hundred Seven only) but the same was dishonored. (iv) Subsequently, on 25.11.2016 an amount of ₹ 5,00,000/- (Rupees Five Lakh only) was credited against the balance of ₹ 19,11,507/- (Rupees Nineteen lakh Eleven Thousand Five Hundred Seven only). A cheque of ₹ 5,00,000/- (Rupees Five Lakh only) was again issued by the Corporate Debtor but the same was dishonored leaving an outstanding of ₹ 14,11,507/- (Rupees Fourteen Lakh Eleven Thousand Five Hundred Seven only). (v) The total principal outstanding amount remained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12/1/2022 in C.P. (IB) No. 2119/KB/2019 [Adventz Finance v. Jai Annanya] at paragraph 10]. 9. Heard the Ld. Counsel for the Operational Creditor and the Ld. Counsel for the Corporate Debtor and have perused the records and the concerned documents annexed to the Petition. 10. Upon perusal of the record placed before us, we rely on Innoventive Industries Ltd. v. ICICI Bank and Anr. (2018) 1 SCC 407, where the Hon'ble Supreme Court while explaining the provisions of Sections 7 or 9 observed and held: 27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning nonpayment of a debt once it becomes due and payable, which includes nonpayment of even part thereof or an instalment amount. For the meaning of debt , we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a claim and for the meaning of claim , we have to go back to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ........ 12. The Hon'ble Supreme Court in Mobilox (Supra) has observed that all that the Adjudicating Authority has to see at 'the stage of Admission' is whether there is a plausible contention which requires further investigation and that the 'Dispute' is not a patently feeble legal argument or an assertion of fact or a moonshine defence unsupported by tangible materials/evidence. In this context it is pertinent to mention that the Corporate Debtor in their letter dated 10.01.2018 has categorically mentioned that the goods supplied by JSPL against back to back arrangement were of extremely substandard Quality. Further, their consent to pay the outstanding of JSPL was based on the condition that the goods to be supplied to them would be of agreed specification and quality'. 13. Further, the Operational Creditor in their reply dated 29.01.2018 stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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