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TMI Blog2022 (9) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 20.04.2018 and so on. As such, the date being 05.03.2018 cannot be considered as date of default and therefore the instant petition is defective in nature. Service of demand notice by email - HELD THAT:- This Adjudicating Authority is satisfied that since the mentioned email id is registered with the ROC as the email-id of the company, the service of the demand notice to the said email id is valid. As such, the demand notice was successfully delivered to the Corporate Debtor and no reply was given by it. Pre-existing dispute or not - HELD THAT:- The fact that no reply to the demand notice was issued by the Corporate Debtor, would not prevent the Corporate Debtor from bringing on record facts to establish pre-existing disputes relating to the instant petition - it can be seen that the dispute relating to the weight of the reels supplied was first raised by the Corporate Debtor vide letter dated 01.10.2018 i.e. much prior to the issuance of the demand letter by the Operational Creditor on 02.09.2019. the said dispute has also been acknowledged by the Operational Creditor vide email dated 01.10.2018. Without going into the merits of the said disputes, this adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor which were also received by the Corporate Debtor without demur. However, the Corporate Debtor failed to make payments within the scheduled time of 7 days as agreed upon and as a result, interest became payable @1.5% per month. 5.3 In January 2018, the prices of paper were increased nominally. Such increases were duly communicated to the Corporate Debtor. 5.4 The last supply of paper made by the Operational Creditor to the Corporate Debtor s factory was on 23.04.2018. The Corporate Debtor has made payments of the Operational Creditor s invoices from 05.01.2018 up until 03.04.2019. However, despite repeated requests from the Operational Creditor end and continued assurances from the Corporate Debtor, no payments have been forthcoming for the remaining invoices. 5.5 As on date, a total sum of Rs. 58,78,873/- is due and payable by the corporate debtor on account of unpaid invoices and unpaid interest on paid invoices. Furthermore, the operational creditor is entitled to interest at the rate of 18% per annum till the date the invoices remain unpaid. 5.6 The Operational Creditor issued a letter dated 02.09.2019 to the Corporate Debtor asking for payment of due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [email protected] and [email protected]. 6.2 The email ID rkpukp2003agmail.com is the email ID of the statutory Auditor of the respondent who is not at all a party in the dispute between the Operational Creditor and Corporate Debtor. Further, the email ID [email protected] does not belong to the Corporate Debtor at all. 6.3 Further, the purported amount as claimed by the Operational Creditor is disputed since long i.e. since 01.10.2018 wherein the respondent had sent a letter dated 01.10.2018 vide email to the applicant and thereby had raised various disputes regarding the quantity/weight of the goods supplied by the operational creditor through the concerned paper mill and that in such letter it had been categorically mentioned that there had been a short supply of 7 Kgs, in every paper reels supplied by the Operational Creditor, totaling to a shortage of 7161 Kgs. In fact, the Operational Creditor had accepted the aforesaid dispute by its reply email dated 01.10.2018. The Operational Creditor therein admitted that the excess amount will be credited after the full payment of disputed invoices is made. 6.4 On 30.08.2019, the Operational Creditor had sent a demand notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finalized by and between the parties as would be depicted from the email of the respondent dated 12.04.2018 and 16.04.2018. 7 Supplementary Affidavit on behalf of the Corporate Debtor: 7.1 The Corporate Debtor, vide supplementary affidavit dated 13.06.2022, has introduced to the record, a report from the Postal Authorities showing the return delivery of the purported demand notice of the Operational Creditor, along with a letter dated 08.04.2022 by the Deputy Director, PO (BD MKTG) Kolkata GPO. 7.2 Further, the Corporate Debtor has reiterated that the email id being [email protected] belongs to its statutory auditor and that the Operational Creditor has deliberately sent the demand notice to wrong email IDs. 8. Analysis and Findings: 8.1 We have heard the Ld. Counsel for the Operational Creditor and the Ld. Counsel for the Corporate Debtor and perused the record. 8.2 A perusal of Part IV of the Form V, specifically page 7, reveals that the Operational Creditor has submitted that the Corporate Debtor has made payments for invoices ranging from 05.01.2018 till 03.04.2019. However, the amount claimed by the Operational Creditor is for 11 invoices ranging from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition. 8.8 In this regard, we would like to rely on the decision taken by the Hon ble NCLAT in the matter of M/s. Brand Realty Services Ltd. Vs. M/s. Sir John Bakeries India Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 958 of 2020] wherein the following was held: [ .] We thus are of the considered opinion that mere fact that Reply to notice under Section 8 (1) having not been given within 10 days or no reply to demand notice having been filed by the Corporate Debtor does not preclude the Corporate Debtor to bring relevant materials before the Adjudicating Authority to establish that there are preexisting dispute which may lead to the rejection of Section 9 application. In the above context, we may refer to Judgement of this Tribunal in Neeraj Jain Vs. Cloudwalker Streaming Technologies Private Limited (Company Appeal (AT) Ins. No. 1354 of 2019) decided on 24th February, 2020 in paragraph 50 following observations have been made by this Tribunal: Even otherwise, mere failure to reply to the demand notice does not extinguish the rights of the Operational Creditor to show the existence of a preexisting dispute... (para 13) 8.9 Now dealing with the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 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. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. (Para 40) 8.13 Keeping in mind the aforementioned judgment, we are of the opinion that the pre-existing disputes in the instant case are not mere feeble arguments, instead they are backed by evidence. As such, in presence of pre-existing disputes, the instant petition is not maintainable. 8.14 In light of the above-mentioned facts and circumstances, this Adjudicating Authority is satisfied that the instant petition is liable to be rejected. 8.15 Consequently, C.P.(IB) No. 140/KB/2020 shall stand dismissed. Needless to say, the Operational Creditor is free to pursue its remedies under any other law, and the dismissal of the present petition shall not stand in the way of such pursuit of remedies. 8.16 The registry is directed to send e-mail copies o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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