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TMI Blog2023 (4) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, points out and also empowers that the Facilitation Council, to arbitrate the dispute, under the Provisions of the Arbitration. In the Instant case, the very fact that the Petitioner/ Appellant/ Operational Creditor, had approached the Chairperson of Micro, Small Enterprises Facilitation Council, Puducherry, to reference dated 07/10/2020, in regard to the non payment of amount, as per the provisions of Section 15 of the Micro Small and Medium Enterprises Act, 2006, by the Respondent/ Corporate Debtor, itself indicates that there has been a Dispute, and in fact, that the amount which was not paid, is now the subject matter of Controversy/ the issue being pending for Resolution, one way or the other, before the said Authority, viz, Chairperson of the Micro Small Enterprises Facilitation Council, Puducherry. Taking into account, the entire gamut of the facts and circumstances of the instant case, in an Holistic Fashion, comes to an Irresistible and Inescapable Conclusion that the view arrived at, by the Adjudicating Authority, ultimately, in the instant Case, that there is a Pre existing dispute, and by placing reliance upon the principles laid down by the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner / Appellant / Operational Creditor , submits that the Appellant / Petitioner / Operational Creditor was approached by the Respondent , to Pack , Store and Sell Ceramic Tiles, and further the Appellant / Petitioner , was supplying the said Boxes to the Respondent , for more than 5 years and it had raised Invoices , from time to time and inspite of the passing of the number of months, large amount of money remain unpaid by the Respondent . But the Activity of Packing , Storing and Selling of the said sale boxes continued, without any disruption. Advancing his Argument , the Learned Counsel for the Appellant / Petitioner / Operational Creditor , points out that during the course of the Appellant s/ Petitioner s Business relationship with the Respondent / Corporate Debtor , the Appellant , had raised more than 1716 Invoices , amounting to Rs. 6,82,66,341/- (Six Crores Eighty Two Lakhs Sixty Six Thousand Three Hundred and Forty One Only), towards which the Respondent / Corporate Debtor , had paid a sum of Rs. 4,91,11,111 (Four Crores Ninety One Lakhs Eleven Thousand Hundred and Eleven only), leaving a balance of Rs. 1,91,55,230/- (O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially, when the date of Default , being 05/09/2018, when the First Invoice , fell due and payable. To lend support to his Contention , the Learned Counsel for the Appellant / Petitioner / Operational Creditor , seeks in aid of the Order , dated 13/01/2020, in Company Appeal (AT) (CH) (Ins) 1142 of 2019, passed by National Company Law Tribunal, New Delhi, ( Three Member Bench ), at Paragraph 9 to 14, it is observed as under: Para 9: We have heard Counsel for both sides and going through the matter, we find that the Adjudicating Authority erred in concluding that because Operational Creditor had moved the MSME Authorities, it showed pre-existing dispute. The Appellant had a relief open under the MSME Act and only because the Appellant moved the Authority under MSME Act, it does not mean that there is a pre-existing dispute. The dispute raised by the Appellant before the MSME was that it had dues to recover and that the Respondent has not paid. This by itself does not mean that there is pre-existing dispute as far as the Respondent is concerned. Under the IBC Section 5 Sub-Section (6), the dispute is defined as under:- (6) dispute includes a suit or arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority. The parties are directed to appear before the Adjudicating Authority on 3rd February, 2020. The Adjudicating Authority will admit the Section 9 Application and pass further necessary orders under the provisions of IBC. Before the Adjudicating Authority passes order of admission, if the Respondent settles the dispute with the Appellant, the Adjudicating Authority in that case may pass suitable orders accordingly . The Learned Counsel for the Appellant / Petitioner , after citing the aforesaid Order of this Tribunal , in Company Appeal (AT) (CH) (Ins) No. 1142 of 2019, between iValue Advisors Pvt. Ltd. Vs Srinagar Banihal Expressway Ltd. , vehemently comes out with a Plea that the Facts and Circumstances of the instant Appeal , i.e., Company Appeal (AT) (CH) (Ins) No. 94 of 2023, are quite similar to the Facts and Circumstances of the case in Company Appeal (AT) (CH) (Ins) No. 1142 of 2019, decided by National Company Law Appellate Tribunal, New Delhi ( Three Member Bench ), dated 13/01/2020 with all Vigour and Validity , in the instant Case. This Tribunal , has heard the Learned Counsel for the Appellant / Petitioner / Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ro, Small and Medium Enterprises Facilitation Council, Puducherry and that itself, will not be a Decisive Factor , for the Petitioner / Appellant / Operational Creditor , for the Adjudicating Authority / National Company Law Tribunal, Division Bench-I, Chennai , to arrive at a Conclusion that there was a Dispute / amounting to Pre existing dispute, coming within the Definition of the Dispute, as per Section 5(6) of the Insolvency and Bankruptcy Code, 2016. The Learned Counsel for the Appellant / Petitioner / Operational Creditor , made a fervent earnest endeavour to point out that in Company Appeal (AT) (CH) (Ins) No. 1142 of 2019, dated 13/01/2020, at Paragraph 10, the Three Member Bench of this Tribunal , is observed as under: Para 10: Thus the Context of the word dispute in Section 18, takes colour from Section 17 of MSME Act. It is different from context of Section 5(6), read with Section 8 of the Insolvency and Bankruptcy Code, 2016 . Be that as it may. as far as the instant Case is concerned, it transpires from the Impugned Order , passed by the Adjudicating Authority / National Company Law Tribunal, Division Bench I, Chennai , that the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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