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TMI Blog2022 (10) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... rity admitted the Section 9 application under IBC filed by the Operational Creditor and initiated Corporate Insolvency Resolution Process ('CIRP' in short) against the Corporate Debtor with immediate effect. Aggrieved by this impugned order, the present appeal has been preferred by the Corporate Debtor. 2. The brief facts of the case which are necessary to be noted for deciding the appeal are as follows: - Sanghvi Movers Ltd., Operational Creditor and Respondent No. 1 in the present case entered into an agreement with Anindya Infratech Pvt Ltd, the Corporate Debtor for supply of cranes on hire basis for construction of concrete structures of Indian Railway pursuant to which two Work Orders were issued. The First Work Order was dated 17.10.2015 for which invoices were raised by Operational Creditor between the April, 2016 and June, 2016. This Work Order was completed by the Operational Creditor and all the invoices were cleared by the Corporate Debtor. Thus, admittedly, by both the Operational Creditor and the Corporate Debtor, all liabilities towards Work Order dated 17.10.2015 stood discharged. There is no dispute between the Operational Creditor and Corporate Debtor regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly only Rs. 58,73,996/- against which Rs. 60,86,376/- was already paid and hence no due was outstanding. In support of his contention, it was stated that the discrepancy between the claim made by the Operational Creditor and the payments done by the Corporate Debtor has arisen owing to the fact that three invoices of the previous work order had been erroneously included with eight invoices relating to the Second Work Order at a time when the previous work order stood closed fully by way of full and final payment. It was asserted by the Learned Counsel for the Appellant that the Respondent No. 1 had already admitted that all invoices of the First Work Order had already been cleared and there were no outstanding dues and yet he combined three previous invoices and misled the Adjudicating Authority. It was added that after making the last payment of Rs 8 lakhs on 04.08.2018, there was no balance remaining to be paid to the Respondent No. 1. 4. In addition it was pointed out that Clause 14 of the Work Order agreement entitled the Operational Creditor to stop the crane services, if outstanding invoices were not cleared within 90 days from the date of invoice, but the fact that he cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent No. 1 also stated that inspite of the two demand notices having been served upon the Corporate Debtor, there was no reply to the said notices and that the amount outstanding is Rs. 11.54 lakhs and interest amount of Rs. 5.85 lakhs calculated at the rate of 24% per annum grossing Rs. 19,95,817/-. 8. On the issue raised by the Corporate Debtor that the Operational Creditor had provided some defective cranes, it has been submitted that no communication regarding defective cranes was received from the Corporate Debtor and that they had submitted fitness certificates in respect of the cranes. Further it was denied that demand notices were not served upon the Appellant and submitted that they had provided evidence of postal receipt alongwith track consignment of Demand Notice before the Adjudicating Authority. 9. We have duly considered the detailed arguments and submissions advanced by the Learned Counsel for both the parties and perused the records carefully. 10. The short point for our consideration is whether payment to the Operational Creditor/Respondent No. 1 as per Second Work Order was due from the Corporate Debtor giving rise to an operational debt, and if s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the Corporate Debtor raised any objection with the Operational Creditor on the aforesaid outstanding amount or sought any clarification thereto. 12. Instead we find that there is clear admission made by the Corporate Debtor/Appellant on 10.04.2018 of a net outstanding amount of Rs.33.74 lakhs only as payable on it's part to the Operational Creditor (as at page 137 of APB). The said letter also concedes that against the gross outstanding amount of Rs. 58.74 lakhs, only Rs. 25 lakhs had been paid in two separate instalments till then. 13. It is further observed that another reminder missive was issued by Respondent No. 1 to the Corporate Debtor on 26.02.2018 (as at page 139 of APB) to clear the outstanding amount of Rs.33.74 lakhs as the said sum had become overdue for more than nine months. Following this reminder, the Corporate Debtor again made two tranches of payment amounting Rs.8 lakhs and Rs.5 lakhs on 24.05.2018 and 28.05.2018 respectively bringing down the outstanding amount to Rs.19.95 lakhs. 14. Thereafter, the Operational Creditor sent the first Demand Notice of Rs.19.95 lakhs on 04.07.2018 to the Corporate Debtor. The Corporate Debtor did not send any written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three invoices which had already been honoured by the Appellant : Invoice Date Invoice No. Balance Amt. 30-Apr-2016 Bill No. 32120-9206 445,133/- 31-May-2016 Bill No. 32667-9206 944,625/- 30-June-2016 Bill No. 3320-9206 110,750/- Work Order 17.10.2015 Total 15,00,508/- 31-Dec-2016 Bill No. 35404-9206 8,81,076/- 31-Jan-2017 Bill No. 35947-9206 9,20,000/- 28-Feb-2017 Bill No. 36311-9206 7,07,694/- 31-Mar-2017 Bill No. 36651-9206 7,78,463/- 30-Apr-2017 Bill No. 37205-9206 6,01,533/- 31-May-2017 Bill No. 37277-9206 9,20,000/- 30-Jun-2017 Bill No. 37603-9206 9,20,000/- 19-Jul-2017 UP/SL/00001-9206 1,45,230/- Work Order 01.10.2016 Total 58,73,996/- Grand Total of Both Work Orders 73,74,504/- Payments received by Operational Creditor 62,20,687/- Balance Amount as Derived 11,53,817/- 18. To remove all ambiguities and to have a more judicious approach, we felt that it would be more prudent to rely on the complete set of accounts in terms of invoices raised and payments received for both the work orders i.e.17.10.2015 and 01.10.2016 as detailed out at page 181 of APB as reproduced below: Anindya Infratec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any demur or objections by the Corporate Debtor during the entire contract period. It has also been contended that the Work Order terms and conditions did not stipulate any condition relating to the age of crane and neither any complaints in this regard were lodged by the Corporate Debtor either during the contract period or prior to issue of Demand Notice. As there is nothing on record to suggest that the Corporate Debtor/Appellant raised any such dispute before receipt of invoices or at any period prior to the issue of demand notice, this cannot be held as a case of pre-existing dispute. There is no exchange of correspondence raising any dispute prior to issue of demand notice. Thus even on this test laid down by Mobilox judgment supra we find that there is nothing credible to substantiate the pre-existence of dispute. 20. From the aforesaid discussion and analysis of facts and circumstances, we are of the considered opinion that the Corporate Debtor/Appellant has defaulted in the payment of operational debt, of an amount exceeding Rs one lakh, which amount had clearly become due and payable, and further in the absence of any pre-existing dispute, we find that no error h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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