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TMI Blog2022 (5) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... e Impugned Order, the Adjudicating Authority has admitted the Application filed under Section 9 of the Code by the M/s. Punjab Renewable Energy Systems Pvt. Ltd.-Respondent No. 1 (hereinafter referred to as 'The Operational Creditor') and observed as follows: "35. It is appropriate to mention here that the invoices are for the fuel supply from February 2016 to April, 2016. The above acknowledgements of liability upto 01 May 2016 by the Corporate Debtor makes it very clear that the Corporate Debtor made the above admission without any dispute. As rightly contended by the Operational Creditor the Corporate Debtor vide their letter dated 18.02.2016 agreed to clear the outstanding payments due to the Operational Creditor without raising any dispute and further agreed to pay interest on the delayed payments also. The invoices annexed to the Company Petition from page nos. 94 to 116 clearly shows that the Operational Creditor has supplied both Cane Trash and Cotton Stalk and not cotton stalk alone as falsely contended by the Corporate Debtor. Since the Operational Creditor started exerting pressure on the Corporate Debtor for payment of their outstanding bills subsequent to the admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as specifically evaded by the first Respondent and that the letter which returned with the endorsement 'unclaimed' should be deemed to be served, the Counsel placed reliance on the following decisions: 'C.C. Alavi Haji Vs. Palapetty Muhammed & Ors.', MANU/SC/2263/2007 'K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Ors.', MANU/SC/0625/1999 'V. Raja Kumari Vs. P. Subbarama Naidu & Ors.', MANU/SC/0937/2004 'Karnataka Public Service Commission Vs. P.S. Ramakrishna', (1996) 2 SCC 519 * While so, on 23.02.2018 the Operational Creditor issued a Demand Notice under Section 8 of the Code which was never received by the Appellant as it is evident that it was delivered at 'Shingvetukai BO' and not at the registered office address at Ahmednagar. Hence, there is a clear non-compliance of Section 8 of the Code and the Petition ought to have been dismissed as non-maintainable, at the admission stage. Thereafter on 27.04.2018, the Application was filed under Section 9 of the Code, for which the Appellant filed a Reply on 14.01.2020 specifying the dispute with respect to the quality of Fuel supplied by the Operational Creditor. * The Adjudicating Authority without taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the FSA that five types of fuel Cotton Stalk, Cane Trash, Corn Cob, Soya Hush and Juliflora were agreed to be supplied individually or in a combination thereof. 5. The issue of 'Pre-Existing Dispute' raised by the Appellant is to be seen on the touchstone of the ratio of the Hon'ble Supreme Court in 'Mobilox Innovations Private Limited Vs. Kirusa Software Private Ltd.' (2018) 1 SCC 353, in which it is held as hereunder: "51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material to note that the Appellant had neither returned the Fuel nor invoked the cancellation clause of the Agreement or exercised any right in the event of the Fuel not being of the prescribed and agreed quality. A non-reply to the legal notices dated 30/10/2017 & 06/12/2017 issued by the 'Corporate Debtor' does not change the colour and character of the case on hand, having regard to the fact that the amounts were agreed to be paid by the 'Corporate Debtor' way back on 18/02/2016. Subsequent to the admission of liability in April and May 2016, after more than a year, the 'Corporate Debtor' got issued the above legal Notices, which appear to be an afterthought, specifically after having accepted and consumed the consignment and never taken steps to reject the same. Hence, we do not find it relevant to rely on the ratio of the Judgements referred to by the Appellant regarding 'the service to be deemed' when the Notice is returned with an endorsement 'unclaimed'. 8. Article 6.1 of the Fuel Supply Agreement that Fuel would be supplied by the Operational Creditor, the rate whereof, would be agreed by and between the parties as per mutual discussions in the yearly collection and supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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