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TMI Blog2022 (10) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents dated 23.03.2017 admitted the fact that there are some disputes between the group company under which the appellant obtained licence for supply of SLAZENGER. Thus, it is an admitted fact that the Appellant does not hold the licence and entered the agreement subsequent to termination of licence / agreement dated 19.01.2015 - there are several correspondences namely the Appellant vide its letter dated 08.08.2017 suggested appointment of arbitrator, however the respondent vide its reply dated 31.08.2017 categorically stated that the void agreement is not enforceable, therefore, the appointment of arbitrator is uncalled for and the respondent is not consented for any requests referring any dispute to arbitrator. This Bench comes to a resultant conclusion that there is pre-existence of disputes between the parties prior to issuance of demand notice dated 08.08.2019 with regard to the very claim of the Appellant and the Adjudicating Authority or this Tribunal cannot go into the disputed issues in a summary jurisdiction. Viewed in that perspective, the order passed by the Adjudicating Authority in rejecting the application filed by the Appellant need no interference. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Learned Adjudicating Authority failed to notice the fact that there is a prima-facie admission by the Respondent its liability towards the Appellant whereby the Respondent assured to pay the dues. The reply letters of the Respondent dated 23.03.2017, 21.06.2017 and 31.08.2017 issued to the demand notice of the Appellant were all sham false and bogus and the same were sent as an afterthought by the Respondent in order to avoid its liability. 5. In view of the reasons as stated above the Learned Counsel prayed this Bench to allow the appeal by setting aside the impugned order. Respondent s Submissions: 6. The Learned Counsel appearing for the Respondent submitted that there is pre-existing dispute between the Appellant and the Respondent since the year 2016, which was demonstrated by letters dated 18.04.2017, 30.05.2017 and 08.08.2017 sent by the Appellant to the Respondent. The Respondent replied to the above letters of the Appellant vide dated 21.06.2017 and 31.08.2017. Further, the Respondent also sent legal notice dated 23.03.2017 to the Appellant for criminal breach of trust, cheating, misrepresentation, fraud and causing wrongful loss. The Respondent has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the demand notice corporate debtor had raised dispute. 11. The Appellant issued a demand notice dated 08.08.2019 to the Respondent claiming an amount of Rs.32,76,648/- due from the date i.e. 27.11.2016 and relied upon the supply agreement dated 01.07.2015. The Respondent replied to the above demand notice by its Reply dated 03.09.2019 wherein it is stated that the Respondent earlier issued legal notice dated 23.03.2017 to the Appellant and they are bound by the stand taken therein. It is also stated in the reply notice that the Respondent filed a criminal complaint against the Appellant dated 15.07.2017. Further, in the reply it is a specific case of the Respondent that there is pre-existing dispute between the parties since the year 2016, therefore, the demand notice is not maintainable since the IBC proceedings cannot be maintainable. It is also stated in the reply, that the amount claimed by the Appellant is disputed since the beginning. 12. The Respondent vehemently contended that there is a pre-existing dispute between the parties and the Application filed by the Appellant is not maintainable and Learned Adjudicating Authority rightly dismissed the application on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the group company under which the appellant obtained licence for supply of SLAZENGER. Thus, it is an admitted fact that the Appellant does not hold the licence and entered the agreement subsequent to termination of licence / agreement dated 19.01.2015. 16. Further, there are several correspondences namely the Appellant vide its letter dated 08.08.2017 suggested appointment of arbitrator, however the respondent vide its reply dated 31.08.2017 categorically stated that the void agreement is not enforceable, therefore, the appointment of arbitrator is uncalled for and the respondent is not consented for any requests referring any dispute to arbitrator. 17. The Hon ble Supreme Court in the matter of Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. reported in (2018) 1 SCC 353 para 33 held as under: 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on nonpayment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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