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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 ..... mand Notice under section 8 has been accompanied by a postal receipt and acknowledgment. The Corporate Debtor has received the Demand Notice. Further, the Corporate Debtor has replied to the said demand notice. The purpose of the said demand notice has been fulfilled in this case and therefore, the same stands admitted - the present petition made by the Operational Creditor is complete in all respect as required by law. The petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4(1) of the Code at the relevant time, i.e., Rupees one lakh. Petition admitted - moratorium declared. - CP (IB) No. 617/KB/2020 - - - Dated:- 5-9-2022 - Shri Rohit Kapoor, Member (Judicial) And Shri Balraj Joshi, Member (Technical) For Operational Creditor : Mr. Shaunak Mitra, Advocate Mr. Satyaki Chaudhury, Advocate For Corporate Debtor : Mr. Jishnu Chowdhury, Advocate Mr. Aritra Basu, Advocate Mr. S.P. Tiwari, Advocate Mr. H Tiwary, Advocate Mr. Rajib Ghosh, Advocate ORDER Balraj Joshi, Member (Technical): 1. This Court convened through hybrid mode. 2. This is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at spraying for the Aster supplied under invoices being Invoice No. WB/19-20/0009 dated 02.04.2019 and invoice No. WB/19-20/0036 dated 22.04.2019 had damaged tea bushes and allegedly caused loss to the Corporate Debtor. It was further alleged that Mr. Rahul Saraf of the Corporate Debtor had visited the tea garden on May 28, 2019 and that he had no clue of such occurrence. The allegations made in the letter dated June 14, 2019 false and incorrect. The said letter was promptly replied to by the Operational Creditor vide a letter dated June 24, 2019. 5.7 The Operational Creditor had duly clarified and addressed all the issues and allegations raised by the Corporate Debtor and believed that the matter stood closed as the purported damages caused to the tea bushes was clearly not attributable to any deficiencies in the product supplied by the Operational Creditor. 5.8 However, the Corporate Debtor continued to make allegations regarding the quality of Aster supplied under the aforesaid two specific invoices and had called upon the Operational Creditor to supply the chemical analysis report and material safety date-sheet for the said products which were thereafter duly supplied and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting disputes between the parties, the present petition could not have been filed at all. After receiving an undated demand notice, the Corporate Debtor made a reply indicating the existence of pre-existing disputes between parties. The said disputes between the parties are genuine and require adjudication in a civil suit. 6.2 The undated demand notice, being Annexure I to the petition is not in proper form. Hence, no demand notice can be said to have been issued by the Operational Creditor in terms of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules, 2016. The petition, is thus, not maintainable and should be dismissed with costs. 6.3 The demand notice suppresses relevant facts. The purported Operational Creditor is not a creditor at all. In fact, the Corporate Debtor has claims against the Operational Creditor. For this purpose, there is a suit which has been filed by the Corporate Debtor. 6.4 The true and correct facts of the present case are that the Corporate Debtor was supplied diverse chemicals by the Operational Creditor since 2014- 2015. 6.5 In or around March-April, 2019, the Operational Creditor approached the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40,04,384/- as at 29.11.2019. To that end, the Corporate Debtor had filed a suit before the Hon ble High Court at Calcutta being C.S. No. 266 of 2019. The same was admitted by the Hon ble High Court on 05.01.2021. 6.12 In the suit, an application was filed by the Corporate Debtor being G. A. No. 1 of 2020. In the said application, on 11.01.2021, directions to file affidavits were given by the Hon'ble High Court at Calcutta. Thereafter, affidavits have been filed, from which it would be evident that the same disputes between the parties are the subject matter of the civil suit. The application was allowed by this Hon'ble Court by an order dated 02.02.2021. 6.13 The Corporate Debtor has mitigated its damages by disposing of the deficient and useless goods which had been supplied. It shall give necessary adjustments to its claims, at trial in the suit pending in the Hon'ble High Court at Calcutta. 7. Analysis and Findings: 7.1 We have heard the Ld. Counsel for the Operational Creditor and the Ld. Counsel for the Corporate Debtor and perused the record. The Corporate Debtor has contended that since the debt in the instant petition is disputed and such dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to defective weedicide supplied by the Operational Creditor and therefore has filed a civil suit for claim of damages before the Hon ble High Court at Calcutta to recover the same. 7.5 In this regard, we would rely on the decision of Hon ble Supreme Court of India, in the matter of Union of India (UOI) vs. Raman Iron Foundry and Ors. MANU/SC/0005/1974 : 12.03.1974 - SC Paragraph 11, the relevant passages of which are reproduced hereinafter: ... Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by the decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach becomes entitled to a debt due from the other party. The only right which the party aggrieved by the breach of the contract has is the right to sue for damages ... ... A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled ... to recover the amount of such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Rule 5 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 along with section 8 of the Code, which provide that a demand notice may be delivered to the corporate debtor, either at the registered office by hand, registered post or speed post with acknowledgement due or by electronic mail service to a whole-time director or designated partner or key managerial personnel, if any, of the corporate debtor. 7.10 In the instant petition, the Demand Notice under section 8 has been accompanied by a postal receipt and acknowledgment. The Corporate Debtor has received the Demand Notice. Further, the Corporate Debtor has replied to the said demand notice. The purpose of the said demand notice has been fulfilled in this case and therefore, the same stands admitted. 7.11 Section 9 (3)(b) affidavit has been filed by the Operational Creditor which is at page 23-24 of the instant application. 7.12 In view of the above facts, the present petition made by the Operational Creditor is complete in all respect as required by law. The petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gress of the CIRP in respect of the Corporate Debtor. h) The Operational Creditor shall initially deposit a sum of ₹2,00,000/- (Rupees two lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims and for his remuneration. These expenses are subject to approval by the Committee of Creditors (CoC). i) In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the IRP by Speed Post, email and WhatsApp immediately, and in any case, not later than two days from the date of this Order. j) Additionally, the Operational Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, Kolkata by all available means for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receipt of a copy of this order. k) CP (IB) No. 617/KB/2020 to come up on 18.10.2022 for filing the periodical report. l) A certified copy of this order may be iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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