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TMI Blog2022 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... total amount claimed by the Operational Creditor is Rs.9,34,114/- and the date of default is 11.06.2019. The Demand notice under section 8 of the Code was received by the Corporate Debtor on 14.08.2019. The reply to the same was sent by the Corporate Debtor. 5. Submissions on behalf of the Operational Creditor: 5.1 The Operational Creditor is a partnership firm engaged in the business of selling and dealing in various grades of pesticides with different chemical compositions, in the states of West Bengal and Assam. 5.2 The case of the Operational Creditor is that pursuant to several purchase orders placed by the Corporate Debtor in 2019, the Operational Creditors had supplied to the Corporate Debtor pesticides and chemicals. 5.3 The products so supplied were accepted by the Corporate Debtor and it acknowledged the fact that the goods supplied were in good condition and in accordance with the agreed specifications. 5.4 The unpaid operational debt presently due and payable by the Corporate Debtor pertains to supplies made by the Operational Creditor between 15.03.2019 and 04.05.2019. The invoices stipulated for interest @18% per annum to be payable if there was delay in paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of inferior quality of supplies. The claims forming subject-matter of the instant proceeding are restricted to the admitted supplied under the other nine invoices, in respect of which no allegation or notice of dispute has ever been issued by the Corporate Debtor. 5.10 In these circumstances, the Operational Creditor had issued notice under section 8 of the Code to the Corporate Debtor claiming an amount of Rs.9,25,690/- along with Rs.8424/- as interest on the unpaid principal amount, payable on account of the nine invoices mentioned above. The same was received by the Corporate Debtor on 14.08.2019. The Corporate Debtor, in response, issued a reply letter making false and baseless allegations. 5.11 As on August 9, 2019 an aggregate sum of Rs.9,34,114/- is due and payable by the Corporate Debtor to the Operational Creditor, as per the following particulars:- i. Rs.9,25,690/- on account of principal; ii. Rs.8,424/- on account of interest @18% p.a. calculated on the outstanding principal sum from June 11, 2019 to August 9, 2019. The Operational Creditor is entitled to further interest on the unpaid operational debt till full realization 5.12 The Operational Creditor ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient and defective, the tea bushes were severely affected with phytotoxicity. The Corporate Debtor, consequently incurred a loss of 1.5 lakh kilograms of tea and the total mortality of tea plants young and mature comes to 1,70,000 plants. Thus, the total loss and damage suffered by the Corporate Debtor has been of a sum of Rs.4 crores. 6.7 The Corporate Debtor, thereafter, called upon the Operational Creditor to witness the situation and expected that the Operational Creditor would take appropriate measures. 6.8 On May 28, 2019, Rahul Saraf, one of the partners of the Operational Creditor visited the tea garden belonging to the Corporate Debtor. Mr. Rahul Saraf accepted the position after visiting the affected areas of the tea garden of the Corporate Debtor. This has been recorded by a letter dated June 14, 2019, The Operational Creditor made a reply to the same on June 24, 2019, raising false and/or incorrect pretax. 6.9 In the said circumstances, the Corporate Debtor requested the Operational Creditor to provide a chemical analysis report and a material safety data sheet of ASTER vide letter dated June 26, 2019. 6.10 The Operational Creditor, on July 20, 2019, made over a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are prior to issuance of Demand Notice, the Adjudicating Authority, in summary jurisdiction, cannot go into those issues which otherwise require a regular trial. The Corporate Debtor has also relied on the Hon'ble Supreme Court's decision in the matter of Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd reported at (2018) 1 SCC 353, Paragraph 51, which is reproduced hereinbelow : - "Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed." 7.2 However, on perusal of the Corporate Debtor's letter dated 14.06.2019, it becomes evident that the Corporate Debtor's contention of pre-existing disputes pertains to two specific invoices being Invoices WB/19-20/0036 dated 22.04.2019 and WB/19-20/009 dated 02.04.2019. The weedicide 'Aster' was supplied under these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im by way of legal proceedings by A against B for amount x and B has also a claim for amount y, B can seek adjustment by setting off the lesser amount of y against amount x or counter-claiming for the balance amount of y after adjusting it against the lesser amount of x. But such form adjustment would arise when rival debts are due, where a debt is not an inchoate claim but a specified liquidated amount immediately recoverable in law." (Paragraph 37) "A claim in damages, on the other hand, is subject to two sets of adjudication albeit in the same proceedings: the entitlement thereof and the assessment of the quantum of damages. Merely because a person has a claim in damages against another would not imply that the undisputed debt of the other may be withheld till the unadjudicated unliquidated claim in damages is pronounced upon by an appropriate forum. Equally, a stark breach of a contract by a party and its denial of the consequent claim in damages by the other may not, in certain circumstances, be completely ignored even if the party in breach has an undisputed amount due from the other." (Paragraph 38) 7.7 In light of the abovementioned judgments, it is clear that while th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. d) Public announcement of the CIRP shall be made immediately as specified under section 13 of the Code read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. e) Mr. Abhisekh Khemka registration number IBBI/IPA-001/IPP02038/ 2020-21/13151 email: [email protected] is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the Code subject to submission of a valid Authorisation of Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. f) D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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