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TMI Blog2022 (9) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... es, but also, the chain of emails between the parties concerned as produced between pages 551 to 563 of the petition indicates that there was no consensus between the parties regarding the quantum of the debt owed to the Operational Creditors and the losses suffered by the Corporate Debtor on account of poor quality of supplies and multiple attempts were made to resolve the said issues. The correspondence between the parties along with the three letters issued by the Corporate Debtor further indicate that the said disputes were not mere feeble legal arguments or assertions of fact unsupported by evidence. The Operational Creditors, in order to recover its dues from the Corporate Debtor, has already filed a civil suit and thereafter execution proceedings for the decree awarded therein - this Adjudicating Authority is satisfied that the instant petition is liable to be rejected. Petition dismissed. - CP (IB) No. 848/KB/2019 - - - Dated:- 1-9-2022 - Shri Rohit Kapoor, Member (Judicial) And Shri Balraj Joshi, Member (Technical) For the Operational Creditors : Mr. Soumabho Ghose, Advocate For the Corporate Debtor : Mr. Rajarshi Dutta, Advocate Mr. Debjyoti Saha, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 64 (Sixty four) number of invoices between the period 18.01.2016 to 08.05.2018 for a sum of Rs.5,79,58,608/-. Copies of the 64 invoices raised by the Operational Creditors are annexed to the petition and marked as Exhibit C . It was further specif ied that interest will be charged @ 24%, if the invoice amount was not paid within the due date. 5.5 Over time, the Corporate Debtor started defaulting in payments. As such, the Corporate Debtor is liable to make payments to the Operational Creditors as shall appear from the confirmation statement which has been duly stamped and acknowledged by the Corporate Debtor. Subsequently, the Corporate Debtor has taken further goods from the Operational Creditors. 5.6 Upon expiry of 30 days from the invoice dates the Corporate Debtor failed and neglected to make payment of the sums due and payable. The total amount of unpaid debt is Rs. 5,79,58,608/- along with interest as on 28.02.2019 @ 24% per annum i.e. Rs. 2,95,63,777/- totaling to Rs. 8,75,22,385/- towards sale of the said goods. 5.7 In spite of repeated reminders to the Corporate Debtor on behalf of the Operational Creditors, no amount has been paid by the Corporate Debtor. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, in view of the pre-existing disputes between the parties, cannot be entertained and is liable to be dismissed with costs. 6.3 In any event, the alleged claim of the Operational Creditors is barred by limitation and a time barred debt cannot form the subject matter of a proceeding initiated under the provisions of the Code. 6.4 The said application has not been filed in compliance of the provisions of the Code. The Operational Creditors are not entitled to any order in the said application and the application is liable to be dismissed. The Operational Creditors have suppressed relevant documents which would establish the existence of dispute between the parties preceding the purported notice issued in Form 3 of the Code. 6.5 The alleged claim is on account of unpaid price of goods purportedly sold and delivered to the Corporate Debtor. There is no formal agreement between the parties recording the terms and conditions of supply. The Operational Creditors have however acted in breach of the agreed understanding between the parties and has approached this Tribunal with unclean hands. 6.6 It is a matter of record that the Corporate Debtor is in requirement of HR Coils, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tations and assurances as aforesaid, the Operational Creditors particularly Sri Rajesh Bihani failed and neglected to replace the defective goods supplied. By passage of time, the quality of the goods supplied further deteriorated and the Corporate Debtor also had to incur storage charges for the purpose of storing the defective goods. The breach of trust on the part of the Operational Creditors resulted in financial loss suffered by the Corporate Debtor which is reasonably assessed at Rs. 10 crores. The aforesaid would be evident from a letter dated 2nd June, 2017 issued by the Corporate Debtor to the Operational Creditors and the said two firms which have been duly received, a copy whereof is annexed to the reply affidavit and marked as Annexure C . 6.10 By another letter dated 20th June, 2018 addressed to the Operational Creditors and the said two firms, the disputes that had arisen on account of defective supplies were once again highlighted. It was informed by the Corporate Debtor that in spite of the accounts team of the Corporate Debtor, owing to inadvertence, had confirmed the alleged outstanding bills as per a ledger statement prepared by the Operational Creditors. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor to raise dispute pertaining to the outstanding sum is only an attempt to wriggle out of its obligation to make payment of the dues of the Operational Creditors. 7.4 It is denied that there is any counter claim of the Corporate Debtor as against the Operational Creditors in relation to the transaction which is the subject matter of the present petition as alleged or at all. It is denied that the purported claim of the Corporate Debtor can form the basis of a purported legal or purported equitable set off or that the claim of the Operational Creditors can never exist as alleged or at all. 7.5 There is no requirement for a format agreement between the parties recording the terms and conditions of supply. There cannot be any dispute with regard to the supply of the goods as the same had not been raised contemporaneously by the Corporate Debt or prior to filing of the instant affidavit as reply to the petition filed by the Operational Creditors. 7.6 It is denied that the supplies effected by the Operational Creditors to the Corporate Debtor did not match the required specification or quality criteria. or that the Corporate Debtor had reported the same to one Mr. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Corporate Debtor has duly prepared the affidavit in opposition and also effected the service of the same on the Operational Creditors and accordingly the matter is likely to be heard by the Hon'ble High Court at Calcutta in due course. 8.4 In view of the fact that the Operational Creditors have already filed a comprehensive civil suit seeking recovery of the dues, it would be manifestly clear that the objections raised by the Corporate Debtor in the present proceedings depict the fact that there are genuine pre-existing disputes and the present proceedings should be dismissed on this ground itself. 8.5 In the above facts and circumstances the said application is mala fide, made by gross suppression of material facts and without any merit and is liable to be dismissed with exemplary costs. 9 Reply to the Supplementary Affidavit filed on behalf of the Corporate Debtor: 9.1 It is denied that the interlocutory application filed before the Hon ble High Court at Calcutta failed to disclose that the present insolvency proceedings have been filed as against the Corporate Debtor as alleged or at all. The contents of the affidavit in opposition filed by the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority, the copies whereof are annexed to this reply and collectively marked with the letter- D . 9.6 The Corporate Debtor has alleged that letters purportedly issued by the Corporate Debtor raising disputes allegedly prior to institution of the present proceedings were received by one Mr. Pankaj Sharma for and on behalf of the Operational Creditors. A purported seal which is forged and fabricated of the company appears on such letters as well. The said Mr. Pankaj Sharma has affirmed an affidavit denying the same. A copy of the said affidavit is annexed to this reply and marked with the letter- E . 10 Supplementary Affidavit dated 4th May, 2022 on behalf of Operational Creditor: 10.1 It is submitted that on 01.04.2022, this Tribunal granted leave to the Operational Creditors to bring on record certain orders and/or documents before this Tribunal, the disclosure of which would have a bearing on the outcome of this instant proceeding. 10.2 The parties to the instant proceedings are also parties to a suit filed by the Operational Creditors against the Corporate Debtor before the Hon'ble High Court at Calcutta being C.S. No. 254 of 2019, for recovery of price of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Operational Creditors and the Ld. Counsel on behalf of the Corporate Debtor and perused the records. 11.2 The primary defence of the Corporate Debtor is that the instant matter involves pre-existing disputes. The Corporate Debtor has produced on records letters dated 2nd March 2017, 2nd June 2017 and 20.06.2018 which clearly show that the Corporate Debtor had raised the said issues regarding the quality of goods supplied much prior to the issuance of the demand notice dated 19th December 2018 by the Operational Creditors. The Corporate Debtor has also notified the Operational Creditors of the pre-existing disputes vis a vis the abovementioned letters in his reply dated 1st January 2019 to the said Demand. In the reply to the second demand notice dated 8th March 2019, the Corporate Debtor has referred to its earlier reply being reply dated 1st January 2019, which mentions such disputes. The letter dated 2.03.2017, being the first letter of dispute is extracted and reproduced hereinunder: 11.3 In regard to issue of pre- existing disputes, we would like to refer to the decision of the Hon ble Supreme Court in the matter of Mobilox Innovations Private Limited Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties along with the three letters issued by the Corporate Debtor further indicate that the said disputes were not mere feeble legal arguments or assertions of fact unsupported by evidence. 11.5 It is noted that the Operational Creditors in its pleadings have challenged the receipt of the letters dated 2nd March 2017, 2nd June 2017 and 20.06.2018 and disputed the genuineness of the Operational Creditors stamp and signature therein. However, the question of the genuineness of the said signature and stamp can only be adjudicated upon in an evidentiary proceeding and not by a summary proceeding under the Code. 11.6 Further, the Operational Creditors, in order to recover its dues from the Corporate Debtor, has already filed a civil suit and thereafter execution proceedings for the decree awarded therein. 11.7 In the light of the above-mentioned circumstances, the law laid down by the Hon ble Supreme Court and keeping in mind the purpose of the Code, this Adjudicating Authority is satisfied that the instant petition is liable to be rejected. 11.8 Consequently, C.P.(IB) No. 848/KB/2019 shall stand dismissed. Needless to say, the Operational Creditor is free to pursue its r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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