9911796707
TMI Blog2022 (10) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ques for encashment precisely during the period 09.04.2021 to 30.09.2021 - what is to be observed is the documents relied by the applicant on the basis of which the demand notice and the instant petition is filed. As evident the applicant in pt.7 of the second demand notice dated 25.11.2021 and Part-V of the instant petition had majorly relied on the copy of the pending invoices, account statements to prove the existence of debt. Further, neither the applicant nor the corporate debtor had placed on record any document or correspondence as to show that any settlement was arrived at between the parties and the second demand notice dated 25.11.2021 was issued subsequent to the breach of any settlement terms. The corporate debtor had failed to raise any plausible contention as to the existence of disputes prior to issuance of demand notice dated 25.11.2021 and the pre-existing dispute attempted to be raised by the corporate debtor is a feeble one, unsupported by any evidence, is a moonshine and nothing else. The operational debt is above the pecuniary threshold limit of Rs. 1 crore as envisaged under Section 4 of the Code, 2016 which was due and there was default on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g account for the transactions between the applicant and the corporate debtor b) The applicant submits that that applicant raised invoices for the goods supplied in a systematic manner on a regular basis and the same were served upon the Corporate Debtor along with each supply made thereunder. The applicant further submits that the payments were released in an erratic manner by the corporate debtor in an untimely way, as a result of the same, the applicant was constrained to settle the erratic payments made by the Corporate Debtor on a FIFO/First-In First-Out basis. The applicant adds that against the supply of the said goods, invoices were duly issued by the applicant and duly received by the corporate debtor along with the supplies, without any dispute or demur. c) The applicant submits that the corporate debtor was never regular in making the payments and was inconsistent in disbursal of payments, due to which the applicant on multiple occasions had approached the officials of the Corporate Debtor regarding the issue of pending payments. d) The applicant submits that due to continuing default by the corporate debtor in payment, the applicant was constrained to sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total of Rs. 4,77,73,937/- (Rupees Four Crores Seventy-Seven Lakhs Seventy-Three Thousand Nine Hundred and Thirty Seven Only) including Rs. 2,21,38,643/- (Rupees Two Crores Twenty-One Lakhs Thirty-Eight Thousand Six Hundred and Forty-Three Only) as principal outstanding as on 11.11.2021 and Rs. 2,56,35,294/- (Rupees Two Crores Fifty Six Lakhs Thirty-Five Thousand Two Hundred and Ninety-Four Only) being the outstanding interest @24% p.a. as on 11.11.2021. j) The applicant submits that said demand notice dated 25.11.2021 was responded to on behalf of the Corporate Debtor by way of a frivolous and baseless Reply dated 10.12.2021. The applicant adds that vide the reply dated 10.12.2021 the Corporate Debtor for the very first time with a mala fide intention and purely as an afterthought levelled false and baseless allegations against the applicant and laid down an absolutely fabricated version of events in the said reply to the demand notice. k) The applicant submits that the applicant under Section 9 of the IBC had filed petition i.e., IB/175/2022 pursuant to the Demand Notice dated 25.11.2021. The applicant further submits that the applicant had withdrawn the said petition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that there is no outstanding amount in the accounts book of the Corporate Debtor as the Corporate Debtor has paid all outstanding/due amount to the Operational Creditor. f) The corporate debtor further submits that the applicant has relied upon invoices which do not even have any receiving from the corporate Debtor implying that those goods were never received by the Corporate Debtor g) The corporate debtor submits that the applicant has unilaterally levied an amount of Rs. 2,56,35,294/- (Rupees Two Crore Fifty-Six Lacs Thirty-Five Thousand Two Hundred Ninety-Four Only) being alleged outstanding interest at a rate of interest of 24% as on 11.11.202 as the said rate of interest was never explicitly agreed by the corporate debtor herein. To support its contention, the corporate debtor had placed reliance on citation CBRE South Asia Pvt. Ltd. v. M/s. United Concepts and Solutions Pvt. Ltd. (CP-IB/797/ND/2021) 5. We have heard Ld. Counsel for both the parties and perused the averments made in the petition and reply filed by the parties. The relevant documents annexed with the respective submissions and the citations relied upon by the parties have been examined i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the financial year 2020 to 2021, precisely till 20.08.2020. The applicant had issued the demand notice dated 25.11.2021 (second demand notice) to the corporate debtor demanding aggregate amount of Rs. 4,77,73,937/- including outstanding principal amount of Rs. 2,21,13,643/- and interest @ 24% amounting Rs. 2,56,35,294/- as on 11.11.2021. The applicant in pt.7 (List of Documents attached to this application in order to prove the existence of the operational debt and amount in default) of the said demand notice dated 25.11.2021 had relied on the ledger account maintained by the applicant, calculation chart and the invoices. 10. Thus, we are bound to emphasize that a presumption that second demand notice dated 25.11.2021 was drawn on the basis of breach of settlement terms between the parties, cannot be drawn merely on the basis that the first demand notice dated 09.10.2020 was withdrawn by the applicant on account of part payment and the post-dated cheques issued by the corporate debtor and subsequent to the dishonor of the post-dated cheques, applicant had issued second demand notice dated 25.11.2021. At this juncture, what is to be observed is the documents relied by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had raised dispute with regard to the invoices claimed by the applicant or any correspondence denying the receipt of the said invoices. Thus, in the absence of any document, correspondence placed on record corroborating the existence of a pre-existing dispute between the parties regarding the non-receipt of goods against the invoices raised claimed by the applicant before the issuance the issuance of the second demand notice dated 25.11.2021, we find no grounds in the corporate debtor's contention as to the existence of a pre-existing dispute between the parties. 14. At this juncture, it is relevant to refer the Hon'ble Supreme Court's judgment in M/s. Innoventive Industries Limited v. ICICI Bank Anr. [Civil Appeal Nos. 8337-8338 of 2017] wherein in para 29 it was held that:- 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 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 Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Innovations Pvt. Ltd. V. Kirusa Software Pvt. Ltd., C.A. No. 9405/2017 decided on 21/09/2017 at paragraph 25 it is observed as under: Adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding Rs. 1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act. 20. In view of the foregoing averments and the discussions made, we are of the considered view that operational debt is above the pecuniary threshold limit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the corporate debtor. (e) The IB Code 2016 also prohibits Suspension or termination of any license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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