9911796707
TMI Blog2022 (6) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 - SUPREME COURT ] the Adjudicating Authority is to see at this stage whether there is plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is thus important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so the Court does not need to be satisfied that the defence is likely to succeed - So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the Application. There is no merit in the Company Petition and the same deserves to be dismissed. - CP No. 1713/IBC/MB/2018 - - - Dated:- 3-6-2022 - Hon ble Member (Judicial) : Justice P.N. Deshmukh (Retd.) And Hon ble Member (Technical) : Mr. Shyam Babu Gautam For the Operational Creditor : Mr. Zacarias Joseph, Advocate For the Corporate Debtor : Ms. Jaymala Ostwal, Advocate ORDER Per :-Shyam Babu Gautam, Member Technical 1. This Company Petition is filed by Hubergroup India Pvt. Ltd. (hereinafter called Operational Creditor ) seeking to initiate Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 600006282 10-May-17 86,254 8-Aug-17 600006838 13-May-17 3,32,499 11-Aug-17 600007275 17-May-17 1,82,283 15-Aug-17 600009885 3-Jun-17 9,36,896 1-Sep-17 600010344 6-Jun-17 3,16,465 4-Sep-17 600010500 7-Jun-17 1,63,148 5-Sep-17 100011540 23-Jun-17 8,10,365 21-Sep-17 600013348 24-Jun-17 10,02,690 22-Sep-17 600013349 24-Jun-17 9,225 22-Sep-17 600013531 25-Jun-17 2,21,670 23-Sep-17 MR1710101451 15-Jul-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor was to make arrangement to test the goods within 48 hours of the delivery supplied and also satisfy about the suitability of such goods before putting them to use. If the goods were not found satisfactory, the same was to be informed in writing within 5 working days of delivery of goods. d. The Operational Creditor sent Demand Notice under Form 3 dated 08.02.2018 to the Corporate Debtor thereby demanding the amount. The said Demand Notice was delivered to and received by the Corporate Debtor via Speed Post on 19.02.2018. Corporate Debtor issued a response to the said Demand Notice dated 22.02.2018 i.e. after the expiry of the ten days period as stipulated under section 8 (2) of the Code . e. The Corporate Debtor in its reply to the Demand Notice, denied any liability to pay to the Operational Creditor. The Corporate Debtor stated that two years ago, Corporate Debtor had claimed amount from the Operational Creditor towards rate difference and quality problem and the same was accepted by concerned sales person of the Operational Creditor who also assured to give discount to the Corporate Debtor. The Corporate Debtor stated that, yet they had not received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the Petition deserves to be admitted. 4. The Submissions of the Corporate Debtor are as follows : i. The Corporate Debtor filed its reply dated 07.07.2018 to the said Petition. The Corporate Debtor stated that the present petition is not maintainable as the Operational Creditor had received notice of dispute from the Corporate Debtor and the petition needs to be rejected. The Corporate Debtor stated that the reply cum notice of dispute dated 22.02.2018 reveal that the Corporate Debtor has brought to the notice of the Operational Creditor the existence of dispute since more than last two years. The said dispute was related to quality and rate difference which was accepted by the sales person of the Operational Creditor who had also assured to give discount. j. The Corporate Debtor states that the Operational Creditor vide its letter dated 12.03.2018 has admitted that the Corporate Debtor had raised its concern with the Operational Creditor regarding the rate difference. This itself epitomize about the existing dispute between the parties. The part of the letter sent by the Operational Creditor to the Corporate Debtor sets out as under: - In the past, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not an exhaustive one but an illustrative one. The Legislature used the words dispute includes a suit or arbitration proceedings. If this is read with section (2) of section 8 of the Code, where words used are existence of a dispute, if any and record of the pendency of the suit or arbitration proceedings, the result is disputes, if any, applies to all kinds of disputes in relation to debt and default. m. Further, the Corporate Debtor has also cited the Judgment passed by Hon ble Supreme Court of India in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (supra) wherein the Hon ble Supreme Court clarified the interpretation of the term dispute under the Code and observed to include dispute raised by the Corporate Debtor prior to the issue of Demand Notice, even though no suit or arbitration is pending in respect of such dispute. The Corporate Debtor quotes the following para 45 of the Judgement . 45. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
