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TMI Blog2022 (7) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Creditor, in spite of alleged complaints, the Corporate Debtor cannot be allowed to use the previous complaints for future transactions. The Corporate Debtor cannot be allowed to take benefit of any earlier complaints made in the past, which transactions had already been paid for and settled, maybe even by issuance of credit notes. In the business, so many transactions take place and complaints made as regard the goods supplied. A Corporate Debtor can take advantage of the goods or specific supplies made with regard to which complaint/ dispute has been raised prior to service of notice under section 8 of the IBC. The disputes or complaints raised long before in the past cannot be allowed to be made use of in every future transactions. If such a tendency is encouraged, it will cause havoc in the business circles. On the one hand, the Operational Creditor has proved its case of outstanding debt and the default and on the other hand, the Corporate Debtor in spite of its best efforts to bring this matter in the category of preexisting dispute has failed to do so - petition admitted - moratorium declared. - C. P ( IB ) No. 10 /KB/2020 - - - Dated:- 5-7-2022 - Mr. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.04.2018 GS/T-045/17-18 666400 04. 18.05.2018 GS/T-067/17-18 726000 05. 18.05.2018 GS/T-068/17-18 484000 06. 24.05.2018 GS/T-073/17-18 605000 Total 38,14,200/- 4. It is further submitted by the Operational Creditor that in the Tax Invoice issued by the Corporate Debtor, the payment conditions were clearly mentioned and in terms of the said Tax Invoice, the Corporate Debtor was duly bound to make payment within 21 days after submission of bills. The Tax Invoice with Road challans were produced at the delivery location. The Operational Creditor supplied goods to the Corporate Debtor for years now. 5. It is submitted that Six different tax invoices were raised total amounting to Rs.38,14,200/- out of which last goods were supplied vide Tax Invoice dated 24.05.2018 and the last payment received from the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of any suit or Arbitration proceedings filed by the Corporate Debtor or any repayment of the unpaid operational deb by the Corporate Debtor. The Corporate Debtor has raised only certain technical issues, which are frivolous in nature because no such dispute had been raised at the time of the delivery of the goods or soon thereafter. It is submitted that in spite of unequivocally admitting and acknowledging the operational debt in writing, the Corporate Debtor has not made any payment to the Operational Creditor. Therefore, the Operational Creditor has claimed a sum of Rs.34,90,318/- as Principal amount and interest of Rs.3,66,483/- as on 1st November, 2019. The Operational Creditor further submits that the Corporate Debtor does not have the financial source to pay the debt and has become commercially insolvent. 9. On being served with the notice of the court, the Corporate Debtor has filed its reply affidavit. 10. In reply to the petition, the Corporate filed replied affidavit of Pranav Kumar, one of the Directors of the Corporate Debtor denying and disputing the every statement and allegation made in the petition. It is submitted that the application is wholly misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore service of notice under section 8 of the Code. In the present case, the Corporate Debtor has failed to point out any communication whereby it has raised dispute whether about the price, quality or quantity of the goods supplied by the Operational Creditor rather the goods supplied by the Operational Creditor being consumed by the Corporate Debtor and therefore there cannot be any dispute as alleged by the Corporate Debtor. The contents of para 10 to 16 of the reply relate to transactions entered into between the Operational Creditor and the Corporate Debtor in year 2016-2017 whereas the present petition is founded on goods supplied in the year 2018 and those transactions are independent of transactions entered into 2016 2017. Therefore, the contents of paras 10 to 16 of the reply affidavit are not relevant. 13. Operational Creditor denied all the allegations in reply to the averments of the petition, which have been denied and disputed by the Corporate Debtor. It is submitted that the outstanding invoices were served immediately in April-May, 2018 after the supplies were affected by the Operational Creditor to the Corporate Debtor and therefore, to contend that the goods p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. It is submitted that the notice in Form 3 was issued on 07.08.2019 (page-46) and it was replied to after prescribed period of 10 days on 16.09.2019 (page 52) by the Corporate Debtor. In the reply to statutory notice, Corporate Debtor did not complain with respect to supply made for invoices based on which Form 3 4 was issued. Corporate Debtor complains about price inclusive of GST for the supplies made in February 2018 1st week of April,2018. It is stated that such contentions cannot be countenanced, as the alleged dispute cannot be even before the supply made by Operational Creditor as supplies are made from 28.04.2018. Apart from this, without prejudice to the contention as above, it is stated that no such dispute is raised before issuance of statutory notice under section 8 of the Code and therefore, there is no pre-existing dispute between the parties. 19. It is further submitted that the affidavit in reply filed by the Corporate Debtor upto paras 17 deals with transactions before the placing of purchase order dated 16.02.2018, and therefore, not germane to the present adjudication as it is not concerning unpaid invoices based on which Form 3 4 are issued. 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bankruptcy Code. In this regard, the following decisions are relied upon:- 1. Pratiksh Promod Rai -Versus- Mylaw Learning Resources Pvt.Ltd. CP (IB) No. 195/MB/2019, (NCLT Mumbai) Propositiona. The Operational Creditor must prove that the Corporate Debtor is not finally sound (Para 14) b. IBC is not a Recovery Forum (Para 15) 2. Mobilox Innovations versus Kirusa Software Pvt. Ltd. -2018 1 SCC 353, Paras 33,34,37,42 to 45, 51,54 at page 404 54 We have seen that a dispute is said to exist, so long as there is a real dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5(6).. 3. Transmission corporation of Andhra Pradesh -vs- Equipment Conductors and Cables MANU/SC/1192/2018 PARA 10. 25. It is submitted that the transactions between the parties are for a period commencing from 19th February 2016 and ending on 24th May, 2018 (pages 70-71: 102-104 and 175-176 of AR). 26. It is submitted that existence of pre-existing disputes is from long before the date of the notice under section 8 as will appear from letters dated 09.05.2016 (page 62 of AR) .. is not as per the specification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pages 6 and 7 (Part IV of the petition). 31. It is submitted by the Ld. Counsel for the Corporate Debtor that the Operational Creditor cannot select six invoices out of a total number of 102 invoices and raise a claim in respect thereof. The transaction between the parties from 19th February 2016 to 24th May 2018 constitute one single series of transactions and the respective claim of the parties against each other will have to be determined in respect of the entire gamut of 102 transaction between 19th February ,2016 and 24th May, 2018. 32. It is submitted that in any event the said six bills have also been raised at a rate below the agreed rate and such concession and reduction in price (though not agreed to by the corporate debtor) clearly indicates the existence of disputes with regard to both quality and rate. It is submitted that in between 17th February,2018 and 24th May, 2018, the Operational Creditor raised a total 40 invoices upon the corporate debtor. The Corporate Debtor has made payment to the operational creditor of a total sum of Rs.2,47,35,800/- as will appear from ledger, statement at pages 175 and 176 of the AR as well as page 54 of the petition. Thus, assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, is hereby admitted. ii) We hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the I B Code, 2016. iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The I.R.P. shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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