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TMI Blog2022 (4) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... e two invoices works out to ₹ 102761/- only as against the claimed amount of ₹ 3,99,034.52 in Part IV of the Application in Form -5. Notwithstanding the difference in the amount claimed thus, the notice has been sent and received by the corporate debtor. Pre-existing dispute or not - HELD THAT:- There is virtually no correspondence from both sides that could throw some light on the issue of pre-existing dispute vis- -vis raising of a claim or even asking for payment by the operational creditor - Given the law laid down by Hon'ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT ] the court held that mere 'existence of a dispute' is not enough and the Court has defined a 'genuine dispute' as bona fide and truly existing before the receipt of the demand notice/invoice, as the case may be, and that the grounds of its existence must be real and such conflict of claims or rights should be apparent from the reply to Demand Notice as contemplated by Section 8(2) of the Code. This not being so in the instant case, no ground of pre-existing dispute has been made out by the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution Process (CIRP') against the Corporate Debtor. (b) An order for appointment of Interim Resolution Professional (IRP') Facts of the Case 3.1. The Operational Creditor is a Real Estate Marketing Service Consultant established in 1987, in Kolkata, West Bengal provides marketing services to various real estate projects. The Corporate Debtor is a non-Govt. company limited by shares and established in 2009 under the Company Act 1956, and is a real estate residential and commercial developer. 3.2. The Corporate debtor authorized the operational creditor to represent it for offering to book/sell the units/flats/Apartments in an upcoming project of the corporate debtor viz;' Mounthill Essence' at Rajarhat, Chowmatha, Kolkata, having total no. 342 flats/units {approx. 327000sq.ft.}. 3.3. In terms of an Agreement dated 07.02.2013, the corporate debtor and the operational creditor agreed that the operational creditor shall be the sole marketing agent for selling the entire project. It was also agreed that the corporate debtor shall not sell the flats directly to anybody or through any other brokers except through an operational creditor. The marketing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Corporate Debtor/Respondent 5.1. The corporate debtor submits that the instant application under section 9 of the Code as the statutory notice issued under Form -3 has been served without any annexures as mandated under the code and also the operational creditor has failed to establish any existence of debt nor there is any acknowledgment of the debt by the corporate debtor. 5.2. It is further submitted that the operational creditor has not complied with the statutory provisions of section 9(3)(b) and 9(3)(c) of the code and that the application is thus not maintainable in the eyes of law and as such the same should be dismissed in limine. 5.3. The corporate debtor submits that the subject contract in question stipulates the mode of payment to the operational creditor which is the 'marketing Fees' and the said clause of the agreement also stipulates that the operational creditor firm is only entitled to get 2% cost on whatever properties they sell out of the 32700 sq. ft. area but the operational creditor has failed to sell the flats within the allocated 32700 sq. ft. in under the terms of the agreement. 5.4. The corporate debtor submits that there are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice under section 8 bears the no. BBRNKR/00212/12-13 dated 19.02.2013 and is amounting to ₹ 1,02,236/-, while the other invoice bearing no. BBRNKR/0057/17-18 dated 30.06.2017 for ₹ 525/-. However, the total of these two invoices works out to ₹ 102761/- only as against the claimed amount of ₹ 3,99,034.52 in Part IV of the Application in Form -5. Notwithstanding the difference in the amount claimed thus, the notice has been sent and received by the corporate debtor. (2) Pre-existing Dispute 7.4. In its reply to the notice under section 8, the corporate debtor has raised the issue of the difference in the amount of the invoices and that mentioned in the application vis- -vis his own account details which appears to give a different picture than that painted by the Operational creditor. Now the question that craves an answer is whether this letter passes the muster of a 'dispute' or not. It must be mentioned here that no details have been provided in the pleadings which would show whether there was a pre-existing dispute that would have been raised by the corporate debtor. There is virtually no correspondence from both sides that could throw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2013 is shown to have been paid vide an entry on page no. 98 (3rd entry from the bottom) of the application against the same invoice. As such we do not see how the operational creditor construes that this particular invoice dated 19.2.2013 remained unpaid and thought it fit to include in the notice under Sec-8. 8. Furthermore, there is nothing on record to show that the operational creditor had also been systematic and persuasive in asking for payment of its outstanding claim and has chosen to file the application without any in-house reconciliation and has chosen to casually include the oldest and the latest invoice in the demand notice in Form 3 of Rule 5. Whereas there is no provision for the payment of interest included either on the invoices or even in the agreement, the same has been claimed @18% impromptu without any basis. 9. Thus, here is a case wherein the allegedly unpaid invoice already stands paid in the records of the Operational creditor himself, charging of the interest where no provision exists and all this being bereft of any worthwhile documentation Such matters serve as poor examples of the treatment of the IBC as an ad-hoc recovery mechanism and that too ..... X X X X Extracts X X X X X X X X Extracts X X X X
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