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TMI Blog2022 (11) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal by an Operational Creditor has been filed against the Order dated 02nd August, 2022 passed by the National Company Law Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as "The Adjudicating Authority"). By which Order, the Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "The Code") by the Appellant has been rejected on the ground of pre-existing dispute between the parties. 2. Brief facts for deciding this Appeal are:- The Appellant is a Partnership Firm engaged in executing contractual work. The Respondent issued Purchase Orders for supply of Crushed Iron Ore. The Appellant in pursuance of the Purchase Orders, supplied Crushed Iron Ore. Appellant claiming outstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Mahi Batra who was no more in employment of the Corporate Debtor after May, 2020. There were materials evidencing pre-existing dispute. Debit Notes, last being sent on 31st March, 2020 and emails / letters dated 22nd April, 2021, 07th May, 2021 and 12th June, 2021 all prior to issuance of demand notice clearly proved pre-existing dispute between the parties. The Adjudicating Authority after hearing the parties passed the Order dated 2nd August, 2022 rejecting Section 9 Application. The Adjudicating Authority came to the conclusion that the email sent by Ms. Mahi Batra allegedly acknowledging the liability were sent by Ms. Mahi Batra after she quit the employment. Hence for deciding the binding nature of alleged acknowledgement further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice that Demand Notice under Section 8 was replied vide Letter dated 14th September, 2021 by the Corporate Debtor stoutly refuting the claim of the Appellant. It is also relevant to notice the allegations in Paragraph 7 and 8 of the Reply-Notice to Demand Notice which are to the following effect: "7. However, since the supplied materials were not as per the agreed qualities/standard, my client has issued debit notes. Needless to mention here that the calculation of the debit notes were based upon the NABL approved laboratory analysis reports, necessary IGST was charged and deposited in government treasury by my client. As your client was fully agreed and satisfied with the NABL sampling and analysis reports; hence they continued the sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a was working as a Manager from December, 2018 to May, 2020 and emails sent thereafter by Ms. Mahi Batra were immoral and illegal. It was further pleaded that since the materials supplied against the eight purchase orders were not as per agreed quality and standard, debit notes were issued based upon the NABL approved laboratory analysis reports. In the Reply to Section 9 Application, the details of the pre-existing dispute were again reiterated. It is sufficient to notice the averments made in paragraph 3 of the Reply of the Corporate Debtor which is to the following effect: "3. At the outset, it is humbly submitted that the present petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) by the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.06.2021 (Annexures- 12, 13 & 14) sent by Corporate Debtor to Operational Creditor in that behalf. In said letters, the Corporate Debtor had also raised claim for loss of profit on account of non-supply of raw material with respect to said remaining 4 purchase orders. Receipt of said advance payment is evident from the bank account statement (Pg. 104 of petition) filed by the operational creditor with the present petition. Said 4 purchase orders were also duly accepted by Operational Creditor vide e-mail dated 17.12.2020 (Annexure -8). Despite the above pre-existing dispute between the parties, the operational creditor calculatedly and malafidely issued demand notice dated 01.09.2021 to the corporate debtor alleging that there is def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y explained the alleged emails sent by Ms. Mahi Batra acknowledging the debt and I.A. was also filed by the Corporate Debtor under Section 65 and 76 of the Code asking to initiate proceeding under Section 76 of the Code against the Operational Creditor. 8. The Adjudicating Authority in the Impugned Order has in detail noticed the invoice amount as well as debit notes and net payable amount in paragraph 8 the amount of Rs. 11,58,03,708/- was paid hence nothing was due. In the Reply Notice as well as Reply details of all debit notes and debit note amount has been mentioned. There were sufficient materials on record to indicate that no amount was due which was clearly mentioned, as per Corporate Debtor the amount which was payable as against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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