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TMI Blog2022 (9) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not by a summary proceeding under the Code. The pre-existing disputes in the instant case are not mere feeble arguments and need to be adjudicated upon by a court of competent jurisdiction. As such, in presence of pre-existing disputes, the instant petition is not maintainable. This Adjudicating Authority is satisfied that the instant petition is liable to be rejected. - CP (IB) No. 138/KB/2020 - - - Dated:- 12-9-2022 - Shri Rohit Kapoor, Member (Judicial) And Shri Balraj Joshi, Member (Technical) For Operational Creditor : Ms. Sonal Shah, Advocate Mr. Kushagra Shah, Advocate Mr. Aniket Chowdhury, Advocate For Corporate Debtor : Ms. Manju Bhuteria, Advocate Mr. Anurag Bagaria, Advocate Ms. Tanvi Luhariwala, Advocate ORDER Rohit Kapoor, Member (Judicial): 1. This Court convened through hybrid mode. 2. This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (the Code) by Prabhat Marketing Co. Ltd. (Operational Creditor), seeking to initiate Corporate Insolvency Resolution Process ( CIRP ) against Tirrihannah Co. Ltd. ( Corporate Debtor ). 3. The Corporate Debtor is a public company incorporated on 04.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018 and from the date when last supplies had been made, being on 6th June, 2019. 5.8 The Operational Creditor issued upon the Corporate Debtor a demand notice under section 8 of the Code on 22nd November 2019. The Corporate debtor replied to the same vide letter dated 11th December 2019, thereby raising the contention regarding the Miteshot supplied to it being ineffective and counterproductive. 6. The Operational Creditor, in support of its claims has relied upon the following documents: a. Purchase order, Delivery note and the bill cover, being Annexure D . b. The disputed invoice, being Annexure E ; c. Copies of the various communications seeking payments, being Annexure F ; d. Ledger maintained by the Operational Creditor, being Annexure G ; e. Demand Notice dated 22nd November 2019 and its reply dated 11th December, 2019, being Annexure H ; 7. Submissions on behalf of the Corporate Debtor: 7.1 The Corporate Debtor has submitted that the Operational Creditor approached it for supp1ying chemicals and pesticide for the tea estate of the Corporate Debtor and it commenced business with the Operational Creditor since 2012. 7.2 The Operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 'Miteshot is effective for the purpose of protecting the tea plantation from the attack of pests and believed the representation of the Operational Creditor that Miteshot will be fit for the purpose of protecting. 7.7 Relying on the skill and judgment of the Operational Creditor, the Corporate Debtor bonafidely placed order for the supply of the said Miteshot instead of 'Magister'. 7.8 In the year 2018, a large area of tea plantation and substantial tea crop got infected and ruined the tea crops causing huge financial loss. Again, in the year 2019 large area of tea plantation and substantial area of tea crop got infected and ruined the tea crops resulting in huge financial loss. This made the Corporate Debtor suspicious with regard to the chemical Miteshot supplied by the Operational Creditor. 7.9 Upon enquiry it came to the notice of the Corporate Debtor that 'Miteshot was not a chemical to be used against pests and the same was not meant for the protection of tea plantation. The Corporate Debtor called upon the Operational Creditor and informed the same to the Operational Creditor. Sometime in May 2019, the Operational Creditor sent its repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Corporate Debtor. 7.15 There are pre-existing disputes between the parties and the same was raised much prior to the demand notice raised by the Operational Creditor. The Operational Creditor knowing fully well that the Corporate Debtor would file proceedings against the Operational Creditor has filed the instant petition with ulterior motive and mala fide intention. A huge sum is payable by the Operational Creditor to the Corporate Debtor for the loss suffered by it. The Corporate Debtor recorded the same in its letter dated 29th July, 2019. The said letter has been issued prior to the demand notice dated 22nd November, 2019. 8. Rejoinder on behalf of the Operational Creditor: 8.1 The Operational Creditor has stated that the deponent of the reply - affidavit is not authorised by the Corporate Debtor to affirm the affidavit on its behalf. There is no document of authority either annexed to the said reply or relied upon by the deponent. No such copies have been served upon the Operational Creditor. 8.2 It is stated that no dispute as defined under section 5(6) of the Code exists in the instant case. The Operational Creditor has denied that it used to advise an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince then but the issue of infestation and crop spoiling was raised only on 29 July, 2019 i.e., after more than one year of consistently placing orders for such supply and utilising the same. 8.8 It is denied that the Corporate Debtor returned any balance chemical of Miteshot against which a credit note was issued by the operat ional Creditor as al leged or at all . In May, 2019 the Corporate Debtor had sought for 40 liters of Miteshot out of which 20 liters was returned and an invoice for 20 liters was raised which was thereafter given credit of from the claim of the Corporate Debtor. 8.9 It is repeated and reiterated that against one supply of 20 liters of Miteshot pesticide in May 2019, the Corporate Debtor, in order to escape its liability to pay the operational creditor its outstanding dues, has raised issues stating that the same had destroyed the crops, though the Operational Creditor is just a supplier of the goods requisitioned. 8.10 The Operational Creditor also states that it is not a case that the letter of the Corporate Debtor of 29th July, 2019 raising allegations of spoiling of crop was raised upon the actual loss suffered instead it was upon the persi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactures Miteshot reveals that the representatives of the Operational Creditor, being Mr. Kailash Dhaundival and Mr. Ishan Dhaundival are the directors of Proxichem LLP. Even though the letter containing such disputes was issued after the demand for the debt was made by the Operational Creditor vide email dated 3rd July 2019, it appears that the Corporate Debtor s contentions regarding the relation between the Operational Creditor and Proxichem LLP is not baseless and need to be looked into further. However, the same can only be adjudicated in an evidentiary proceeding and not by a summary proceeding under the Code. 9.9 In this regard, we would like to refer to the decision of the Hon ble Supreme Court in the matter of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited Mobilox Innovations Private Limited vs. Kirusa Software Private Limited (21.09.2017 - SC) : MANU/SC/1196/2017 wherein it was held that: The scheme of Section 7 stands in contrast with the scheme Under Section 9 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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