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TMI Blog2022 (9) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed by the Operational Creditor - there were pre-existing disputes with regard to the quality and weight of Soya DOC provided. The Corporate Debtor has filed another series of emails from 05.092016 to 26.09.2016 wherein the Operational Creditor has requested the Corporate Debtor to pay the outstanding amount and the Corporate Debtor has time and again reiterated that all the dues have been paid, in these emails the Operational Creditor has not mentioned the amount due or given a statement but has rather asked the Corporate Debtor to look into its accounts. There is existence of pre-existing dispute hence, the Company Petition is liable to be rejected - Petition dismissed. - I.A. (IB) No. 1078/KB/2019 and CP (IB) No. 373/KB/2018 - - - Dated:- 6-9-2022 - Shri Rohit Kapoor : Member ( Judicial ) And Shri Balraj Joshi : Member ( Technical ) For the Operational Creditor : Mr. Anand Prabhawalkar , Advocate For the Corporate Debtor : Ms. Manju Bhuteria, Advocate Ms. Rajshree Kajaria , Advocate Ms. Sarvaprita Mukherjee , Advocate ORDER Per Balraj Joshi , Member ( Technical ) 1. This Court convened through hybrid mode. CP (IB) No. 373/KB/2018 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nety-Nine Paise) @ 18% per annum totaling to Rs.46,68,629.99 (Rupees Forty-Six Lakh Sixty-Eight Thousand Six Hundred and Twenty Nine and Ninety Nine Paise) which is above the threshold limit prescribed at the relevant time. d. The Operational Creditor sent a demand notice to the Corporate Debtor dated 26.09.2017 which was delivered on 03.10.2017; annexed with the petition and marked at pages 22 to 27. e. The Corporate Debtor replied to the Demand Notice on 04.11.2017 wherein the Corporate Debtor has stated that nothing is due and payable. f. The Corporate Debtor has merely denied its liability and have claimed that all the bills have been paid after deductions. The Corporate Debtor contends that a sum of Rs.27,61,170/- was deducted on account of quality issue but the Operational Creditor was not aware of such deduction. 6. Apart from the aforementioned documents, the Operational Creditor has placed the following documents on record: g. Copies of invoices; annexed to the petition and marked as Annexure 1 Exhibit B at pages 31-189. h. Copies of emails; annexed to the petition and marked as Annexure I Exhibit E at pages 194-222; i. Copies of bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions would show the discrepancy. iii. The Operational Creditor has referred to a GRN which corresponds to the invoice dated 05.01.2015 which has the least discrepancy. It is thus a case of contemporaneous disputes raised against each and every consignment of goods supplied by the Operational Creditor, on which ground alone the petition is liable to be dismissed. The Learned Counsel placed reliance on: Mobilox Innovation v. Kirusa Software Private Limited 2018 (1) SCC 353 (paras 48, 50, 51, 56 and 57), K. Kishan v. Vijay Nirman MANU/SC/0872/2018 (paras 14, 15), Sangeeta Goel v. Roidec India Chemicals Private Limited (2020) 219 Com. Cases 545 (paras 11, 12 and 16), .Suman Chakraborty v. Anhui Technology Imp. Exp. Co. Ltd. MANU/L/0006/2020 (paras 6 and 8). iv. The learned Counsel stated that in case of defective goods supplied, it is not necessary for the buyer to reject the goods. The buyer has the option to claim damages in a proceeding by the seller claiming price of goods sold and delivered as has been done here:, he placed reliance on Aectra Refining And Manufacturing Inc. V. Exmar N.V. (1994)1 Weekly Law Report 1634. c. Contradictory case of the petition war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application filed by the Operational Creditor was admitted. b. Dynamic Cables Ltd. v. India Power Corporation (Bodhgaya) Ltd. reported in [2020] 117 Taxmann.com 845 (NCLT, Kolkata): In support of contention that for non-communication of existence of any dispute by the Corporate Debtor to the Operational Creditor, the application under section 9 deserves to be admitted. (Para 8) c. Naveen Kumar Dixit v. Jaswant International (P.) Ltd. reported in (2019] 107 Taxmann.com 427 (NCL-AT) d. Blend Colors (P.) Ltd. v. Vast Industries (P.) Ltd. reported in (2020] 116 Taxmann.com 445 (NCLT -Mum) e. Creative Infraheights P. Ltd v. JBK Developers P. Ltd. reported in [2020] 120 Taxman.com 266 (NCLT- New Delhi). f. Shanti Chemtrade (P.) Ltd. v. S.K. Dyeing Finishing Mills (P.) Ltd. [2020] 118 Taxmann.com 249 (NCLT-New Delhi) 13. Therefore, mere denial of payment by the Corporate Debtor without communicating the existence of dispute as to quality of goods supplied cannot be considered as Dispute within the meaning of Section 5(6) of the Code. If bare denial of claim is labelled as dispute then Sections 8 9 of the Code would become redundant, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya DOC which was to be supplied to the Corporate Debtor. The specifications were provided in the email correspondence dated 18.02.2015. e. The Operational Creditor has stated that none of the godown receipt notes has an imprint of the laboratory report as claimed by the Corporate Debtor whereas the Operational Creditor has itself annexed a godown receipt note in the Company Petition at page 189 of the Company Petition which corresponds to the invoice at page 32 of the Company Petition and bears a stamp of the laboratory report. f. Apart from Rashmi Garg, Shreyansh Garg is also responsible for the statements made in the Company Petition and the rejoinder and have committed acts of perjury. The acts of the Directors of the Operational Creditor attracts the provisions of section 191 and 193 of the Indian Penal Code, 1860 and warrants an enquiry to be made into the offense as referred to in section 195(1)(b) of the Indian Penal Code, 1860. Issues 16. The issues to be considered are: g. whether there was a pre-existing dispute? h. Whether payments have been made to the Operational Creditor? Analysis and Findings 17. Heard the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was settled in half, and on 28.02.2015 wherein a calculation chart has been given for the deductions made for transportation and weight shortages. Thereafter, the Corporate Debtor has made payments to the Operational Creditor through RTGS and cheques as is evident from the emails correspondences that have been filed by the Operational Creditor. 24. Hence, there were pre-existing disputes with regard to the quality and weight of Soya DOC provided. The Corporate Debtor has filed another series of emails from 05.092016 to 26.09.2016 wherein the Operational Creditor has requested the Corporate Debtor to pay the outstanding amount and the Corporate Debtor has time and again reiterated that all the dues have been paid, in these emails the Operational Creditor has not mentioned the amount due or given a statement but has rather asked the Corporate Debtor to look into its accounts. 25. From the above it is clearly brought out that there is existence of pre-existing dispute hence, the Company Petition is liable to be rejected. 26. With respect to I.A. (IB) No. 1078/KB/2019, Rashmi Garg in the rejoinder has denied any agreement taking place in 2013 and the Corporate Debtor has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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