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TMI Blog2022 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Corporate Debtor and enclosed the email dated 04.12.2020 and 05.12.2020 which were sent by the Corporate Debtor to the Operational Creditor in respect of inferior quality of the product of the Operational Creditor - It is observed that both the emails dated 04.12.2020 and 05.02.2020 were sent by the Corporate Debtor after issuance of Demand Notice dated 02.12.2019. The Corporate Debtor has not placed on record any other document to prove that there is pre-existing dispute before the issuance of Demand Notice - there exist no pre-existing dispute between the Operational Creditor and Corporate debtor. After giving careful consideration to the entire matter, hearing the arguments of the learned counsel for the Operational Creditor as well as the Learned Counsel for the Corporate Debtor and upon appreciation of the documents placed on record to substantiate their respective claims, this Adjudicating Authority is of the view that there is an operational debt which is due from the corporate debtor and the corporate debtor has defaulted in making payment of the amount due and along with that, in the absence of any pre-existence of dispute, this tribunal admits this application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor sent a written letter dated 14.12.2019 in reply to notice of demand in Form 3. vii. It is submitted by the Operational creditor that there was no dispute with respect to the quality of goods supplied by the operational creditor. 4. The total amount of debt claimed to be in default is Rs. 12,19,124/- as on 05.01.2020 including interest of Rs. 79,611/- on outstanding amount. The date of default is 27.10.2019. 5. The Corporate Debtor, in its reply dated 05.03.2020, submitted that: i. The present petition is not being filed by the duly authorized person on behalf of the Operational Creditor as per the provisions of the Companies Act, 2013. ii. The Corporate debtor on various occasion brought to the notice of the Operational Creditor that the products are defective and the same be returned back which the operational creditor failed to do so. The same is evident from the email dated 04.12.2019, 05.12.2020 as well as vide reply to the demand notice dated 14.12.2019. iii. As per the books of account of the Corporate Debtor, the books shows a sum of Rs. 35,348/- is due and payable and the demand made by Operational creditor is false, frivolous and misconceive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the operational creditor. e. In para 3 of the reply of demand notice, the Corporate Debtor admits the time limit of payment of bills is 30 days whereas in para 9 and 10 of the Reply to IB petition, the Corporate Debtor want the Operational Creditor to demonstrate what is the stipulated time to make the payment to the operational creditor. iv. The closing balance as per the ledger account provided by the Corporate Debtor was Rs. 11,88,514/- whereas the real outstanding amount was Rs. 11,39,513/-. v. The invoices are the agreement as per the Indian Contract Act, 1872. vi. The Operational Creditor referred the judgment of the Hon'ble Supreme Court in para 40 in the matter of Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd. (2017) 85 taxmann.com 292 and the judgment of the Hon'ble Appellate Tribunal in para 13 and 14 in the matter of Excel Infra Logistics (P) Ltd. v. Karnani Solvex (P) Ltd. (2020) 118 taxmann.com 340 (NCLAT) and also the judgment of this Hon'ble Tribunal in para 13 in the matter of Fine Group Corporate Limited v. Lemon Electronics Limited (2020) 120 taxmann.com 177 (NCLT-New Delhi). 7. We have heard the Ld. Counsels fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor, in its written submissions, has contended that the ledger account of the corporate debtor, from 01.04.2019 to 05.03.2020, has shown seven payments made by the corporate debtor to the financial creditor. 13. It is observed that the amount/transactions written in the ledger account of a person cannot be relied upon i.e. it does not have any authenticity in the eyes of law. Also, the Corporate Debtor has not filed its Bank Statement to show that the payment has been made to the Financial Creditor. Therefore, the aforesaid contention of the Corporate Debtor cannot be accepted by this Hon'ble Tribunal. 14. In the light of the above said facts and after giving careful consideration to the entire matter, hearing the arguments of the learned counsel for the Operational Creditor as well as the Learned Counsel for the Corporate Debtor and upon appreciation of the documents placed on record to substantiate their respective claims, this Adjudicating Authority is of the view that there is an operational debt which is due from the corporate debtor and the corporate debtor has defaulted in making payment of the amount due and along with that, in the absence of any pre-existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government, State Government Local Authority, Sectoral Regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of Insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period. 20. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government and the supply of essential goods or services to the Corporate Debtor, as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018, which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 21. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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