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TMI Blog2022 (6) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) For the Operational Creditor : Mr. Arnab Dutta, Adv. Ms. Prerana Choudhary, Adv For the Corporate Debtor : Mr. Rahul Parasrampuria, PCS ORDER Per: Harish Chander Suri, Member (Technical) 1. The Court is convened by video conference today. 2. This petition under 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules,2016 has been filed by GT INDIA PRIVATE LIMITED, through its General Manager, Mr. S.Vijay Sharma, authorised vide Board Resolution dated 10/05/2019 (Exhibit-M) (hereinafter referred as the Operational Creditor), seeking initiation of corporate insolvency resolution process in respect of JAYANTI DOMESTIC PRODUCTS PRIVATE LIMITED, a corporate entity, having its Registered office at 9C, Ganguly Lane, Kolkata, West Bengal, 700007, (hereinafter referred as the Corporate Debtor). 3. It is submitted that the Operational Creditor is one of the largest manufacturers and exporters of Dhoops Agarbathies including sambhranis, Kumkum Turmeric and had supplied the Joss Powder to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor to the Corporate Debtor is annexed as Annexure- Exhibit-G. 8. It is submitted that the copy of Demand Notice was sent by India Post through Speed Post on 14th May, 2019, the copy of the Speed Post Receipts evidencing the service of the Demand Notice is annexed as Exhibit-H, along with the copy of the Track Report as available from the website of the India Post evidencing the delivery status for the same. 9. It is submitted that the copy of the Statement of Bank Account of Operational Creditor where deposits are made or credits are received normally by the Operational Creditor in respect of the Corporate Debtor, reflects that no amount has been received by the Operational Creditor from the Corporate Debtor post the issue of Demand Notice, the copy of the Bank Statement of Operational Creditor is annexed as Exhibit-I. 10. It is submitted that the Operational Creditor had reminded several times to repay the outstanding dues but the same remain unpaid till date. However, the Operational Creditor had received a reply from the Corporate Debtor on 24th May, 2019 against the issue of the Demand Notice stating that the matter is under dispute at Fast Track Criminal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has received, accepted and consumed the goods. 13. It is further submitted that the Corporate Debtor failed to make payment of the outstanding amount, the Operational Creditor herein served a Demand Notice dated 13/05/2019 upon the Corporate Debtor herein under section 8 of the IBC through Speed Post as well as over Respondent s email ID. 14. It is submitted that the Corporate Debtor replied to the Demand Notice vide reply letter dated 24/05/2019 which is produced with the Petition at page No.67. It is pertinent to note that Corporate Debtor did not dispute the quality or quantity of the goods supplied. On the contrary, the Corporate Debtor simply said that the issue is under dispute and pending at Chennai Fast Track Criminal Court which is all fabricated and also not even a single documentary proof was attached or sent later as mentioned by Corporate Debtor in the said reply letter. Thus, the Corporate Debtor has not given any sort of details or correspondence of dispute upon receipt of the Demand Notice issued under section 8 of the IBC,2016 or thereafter. 15. It is submitted that thereafter, the Operational Creditor was constrained to file the present petition before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the inferior quality of the material and the loss suffered because of such material and has proposed and requested the Operational Creditor to resolve the issue. Copy of the letters dated 01/09/2017 and 09/10/2017 are annexed as Annexure- A B respectively. 21. It is submitted that thereafter on 20th October, 2017, the Operational Creditor has admitted through their advocate that the material supplied by them were of inferior quality and has hence requested to return the material within 15 business days from the date of the letter, which shows the existence of dispute with respect to the quality of material as per Section 5(6) of the Insolvency and Bankruptcy Code, 2016. Copy of the letter dated 20.10.2017 is annexed as Annexure-C. 22. It is submitted that after the request received by the Operational Creditor to return the goods for replacement of the same, the Corporate Debtor has asked them to supply the GST number so as to enable the return of materials vide two letters dated 27.10.2017 and 24.11.2017.Copy of the letters dated 27.10.2017 and 24.11.2017 are annexed as Annexure-D and E respectively. 23. It is submitted that in between these letters, a letter from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application whether there is a plausible contention which requires further investigation and that the dispute is not patently feeble legal argument or an assertion of fact and supported by evidence. So, here in the instant case, the Corporate Debtor states that the dispute is also supported by the emails/letters which were exchanged between the Corporate Debtor and the Operational Creditor. 28. It is submitted that the Operational Creditor has also very cunningly filed a case under Section 138 of the Negotiable Instruments Act, 1938 against the Corporate Debtor, however, that are not pursuing the same because they are very well aware of the fact that no sum is payable by the Corporate Debtor to the Operational Creditor on account of the inferior quality of materials supplied. The Operational Creditor has also refrained from appearing in the said matter. 29. Further, the Hon ble Supreme Court in the matter of Dena Bank versus C Shivakumar Reddy (Civil Appeal No. 1650 of 2022), held that there is no bar in law to the amendment of pleadings in an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 or to the filing of additional documents apart from those i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the invoice mentioned in sub-section (1), bring to the notice or the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which pre-existing - i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. 32. The Corporate Debtor during the course of arguments has further referred to decision of the Hon ble Supreme Court in the matter of Dena Bank Vs. C Shivakumar Reddy, (Civil Appeal No. 1650 /2022) wherein the Hon ble Supreme Court has held that there is no bar in law to the amendment of pleadings in an application under section 7 of the IBC, 2016 or to the filing of additional documents apart from those initially filed along with application under section 7. The Corporate Debtor is relying on the same analogy in the instant section 9 application. It is submitted that the Operational Creditor was very much aware of the existence of the dispute at the time of filing of the application under section 9 of the Code and, therefore, the present application is not maintainable. The Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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