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TMI Blog2022 (10) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... er ( Judicial ) And Hon ble Smt. Anuradha Sanjay Bhatia , Member ( Technical ) For the Petitioner : Mr. Yogendra M. Kanchan , Advocate For the Respondent : Mr. Nausher Kohli , Advocate ORDER Per : Shri H. V. Subba Rao , Member ( Judicial ) 1. This Company petition is filed by M/s Shri Sadguru Traders (hereinafter called Operational Creditor ) seeking to initiate Corporate Insolvency Resolution Process (CIRP) against M/s Gajalee Coastal Foods Pvt. Ltd. (hereinafter called Corporate Debtor ) by invoking the provisions of Section 9 of Insolvency and Bankruptcy Code, 2016 (hereinafter called Code ) read with Rule 6 of Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for resolution of a sum of Rs. 49,57,924/- (Rupees Forty Nine Lakhs Fifty Seven Thousand Nine Hundred Twenty Four Only) being an Operational Debt due and payable by the Corporate Debtor towards the unpaid invoices amount for the food and spicy items supplied by the Operational Creditor to the various branches of the restaurants of the Corporate Debtor situated at Vile Parle branch, Versova branch, M.I.D.C. branch and Phoenix Mills branch at Mumbai. 2. The brief fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cooking of coastal foods, were ordered and purchased from the OC. Corporate Debtor further states that they had maintained high quality standard of coastal foods, therefore requiring high quality of goods supplied to them, However, the quality of goods supplied by the OC were substandard and of inferior quality making their reputation to be hampered. iv. The Respondent further states that after scrutinizing the accounts and the records maintained by the OC, it has been now noticed that in respect of various different bills raised by the OC, the payment has been made in cash by the CD however it seems that the OC have deliberately not given any credit for the said amount which has been received by them. v. The Respondent states that after it was noticed about the Operational Creditors that they are supplying inferior quality of goods in various different restaurants owned by the Corporate Debtor, it was noticed that the Staff of the CD have acted in collusion and connivance with the representatives of the OC and therefore Corporate Debtor immediately stopped business transaction with the Operational Creditors. vi. On letter dated 28.05.2019 have specifically reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit note has been issues on account of returned of substandard goods. I say that credit not have been issued on account of excess quality of goods which have been returned by the Corporate Debtor to the Operational Creditor. I say that defence of inferior / sub-standard quality of the goods, raised by the Corporate Debtor under affidavit in reference is nothing but incorrect and the false statement made on oath with the knowledge and with intention to avoid payment for liability of the price of the goods. Admittedly, nothing has been mentioned whether the Corporate Debtor has returned the said alleged inferior quality goods. Very fact that the Corporate Debtor had utilized the goods falsified the case put up by them regarding inferior quality of goods. I further say that the false and concocted story about alleged supply of sub-standard goods is taken up for the first time in their reply dated 28th May, 2019, which is nothing but an afterthought as lastly, part payment was made on 24.12.2018. Para. 8 The Operational Creditor states that prior to demand notice dated 15.05.2019 issued by the Operational Creditor under Section 8 of the IB Code 2016, there was no communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Debt due and payable by the Corporate Debtor being the unpaid amount due towards the supply of certain food and spicy items supplied to the Corporate Debtor s restaurants situated at various arears in Mumbai by the Operational Creditor. The Operational Creditor annexed the details of the invoices under different headings as follows: a. Debtors Outstanding Statement of the Corporate Debtor as on 17.08.2019 for Lower Parel Branch under Exhibit H at Page No. 56 of the Company Petition. The Operational Creditor claimed the amounts under different invoices covering from 12.01.2015 till 21.02.2018. b. Debtors Outstanding Statement of the Corporate Debtor as on 17.08.2019 for MIDC Branch under Exhibit I at Page No. 58 of the Company Petition. The Operational Creditor claimed the amounts under different invoices covering from 07.06.2016 till 21.02.2018. c. Debtors Outstanding Statement of the Corporate Debtor as on 17.08.2019 for Vile Parle Branch under Exhibit J at Page No. 60 of the Company Petition. The Operational Creditor claimed the amounts under different invoices covering from 21.10.2015 till 24.02.2018. d. Debtors Outstanding Statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llized based on the invoices. Para- 21. As can be seen from Section 8, reproduced above, the moment there is an occurrence of a default, copy of an invoice demanding payment of the amount involved in the default is to be delivered by way of a Demand Notice to the Operational Creditor . Form III gives the details of the invoices. In the instant case, the Operational Creditor has given the details of invoices from (pages 399 to 406 of Volume II) and has also crystalized the amount at Rs. 2,39,85,521.35/-, which is unpaid from 2011. Therefore, the argument of the Learned Counsel for the Operational Creditor that the period should be confined only from 2015 to 2017 cannot be sustained. The Tribunal cannot confine to one or other invoice if the Applicant has relied on all the invoices to arrive at the amount of Rs. 2,39,85,521.35/- in the Demand Notice under Section 8. We are of the view that the Tribunal does not have jurisdiction in these Insolvency Proceedings to cut-short the invoices which would cause recurring dates of cause of action as it is not a suit for recovery. ix. In view of the aforesaid reasons coupled with the above law laid down by the Hon ble NCLAT me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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