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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 ..... confirmation letter dated 01.04.2016 and 01.05.2016. The amounts were repeatedly requested to be paid by the Operational Creditor vide emails dated 09.04.2016, 19.04.2016 and 17.08.2016 - 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 supply plan. To state that the Application was non-compliant of Section 8 of the Code and deserves to be dismissed, is unsustainable. Having regard to the admission of the liability in the correspondences and in the ledger confirmation letters read with the invoices raised over a period of time from 2016 onwards for supply of both Cane Trash and Cotton Stalk, this Tribunal is of the earnest view that the dispute raised by the Appellant at this belated stage, having accepted the fuel over a duration of time, is a patently feeble argument, unsupported by any substantial evidence. Appeal is devoid of any merit and is dismissed. - COMPANY APPEAL (AT) (INSOLVENCY) No. 16 of 2022 - - - Dated:- 26-5-2022 - [Justice Ashok Bhushan] Chairperson , [Ms. Shreesha Merla] Member (Techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Company Petition by the Operational Creditor as a counterblast. 2. Submissions of Learned Counsel for the Appellant: Learned Counsel for the Appellant submitted that Demand Notice dated 23rd February, 2018 was never received by them and that the alleged delivery slip forwarded by email dated 10.04.2018 by the Mumbai GPO does not state whether the Demand Notice was either delivered or rejected . It is submitted that under the Fuel Supply Agreement , the Operational Creditor was under obligation to supply Cane Trash, however Cotton Stalk was supplied several times in huge quantities and the issue was addressed to the Operational Creditor vide emails from 15th December, 2015 till 22nd September, 2016. It is also contended that vide a letter dated 18.01.2016, the Corporate Debtor specifically directed the Operational Creditor not to supply Cotton Stalk till the rates were fixed. Since the Operational Creditor continued to supply Cotton Stalk, in contravention of the terms of the Fuel Supply Agreement, the Corporate Debtor got issued a Legal Notice on 30.10.2017 and on 06.12.2017 calling upon the Operational Creditor to supply the balance 16600 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Counsel for the Appellant that they had never agreed to pay any amount for Biomass Fuel other than Cane Trash and the rate for Cotton Stalk and Juliflora were not specifically fixed because there is no cost of extraction of this raw material. The Operational Creditor has raised invoices towards supply of Cane Trash and Cotton Stalk, though they are aware that Cotton Stalk does not have any intrinsic value. It is submitted that a clear dispute with respect to the quality of the Biomass Fuel, the type of fuel and also the rate, apart from the fact that the Appellant was denied an opportunity of replying to the Section 8 Demand Notice which was never delivered to their registered address at Ahmednagar. 3. Submissions of Learned Counsel for the Respondent: Learned Counsel for the Respondent contended that if the Appellant was not satisfied with the quality of the Biomass Fuel they could have easily invoked the cancellation clause of the Fuel Supply Agreement, but they have never done so, but, instead the Fuel that was supplied to them was accepted and consumed and was never returned. Therefore, the question of any dispute regarding the quality of fuel does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority has to reject the application. ..................... 56. Going by the aforesaid test of existence of a dispute , it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague, got-up and motivated to evade liability. 6. A perusal of the invoices raised by the Operational Creditor from 01.06.2016 to 26.04.2016 show that the total amount was Rs.1,79,13,261/- for Biomass Fuel, Cane Trash and Cotton Chip. The material on record establishes that this amount has been acknowledged by the Corporate Debtor in their ledger and in the confirmation letter dated 01.04.2016 and 01.05.2016. The amounts were repeatedly requested to be paid by the Operational Creditor vide emails dated 09.04.2016, 19.04.2016 and 17.08.2016. The contention of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied Cotton Stalk Fuel for want of a rate to be decided in advance, is not acceptable. The letter of the year 2016 relied upon by the Appellant raising the issue of Cotton Stalk are lacking as they are devoid of any proof/acknowledgement of service. The receipt of these letters is specifically denied by the Counsel for the Respondent. The onus of proof is on the Appellant to establish service of these letters, which they have failed to discharge. 9. A perusal of the Postal Department letter dated 20.03.2018 shows that this Article Consignment No. RM 121958348IN dated 23/02/2018 (which refers to the Section 8 Demand Notice) has been delivered on 03.03.2018 Shingvetukai BO . We find force in the contention of the Learned Counsel for the Respondent that Shingvetukai BO is the name of the village where the registered office of the Corporate Debtor is located as it is evident from the address of the registered office. The MCA website clearly states that the registered address of the Corporate Debtor is Plot No. B-4, Village Shingwetukai, MIDC Newasa, Taluka Newasa, Newasa MH. Therefore, to state that the Application was non-compliant of Section 8 of the Code and deserves to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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