9911796707
TMI Blog2023 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority is agreed upon that the balance amount claimed as operational debt has been unequivocally disputed by the Corporate Debtor and no liability admitted on this count. The present is therefore not a case where there is an undisputed debt for which Corporate Debtor can be brought under the rigours of CIRP. Three communications purportedly issued by the Corporate Debtor - HELD THAT:- The Adjudicating Authority in the impugned order has duly considered this aspect and relied on the decision taken by this Tribunal in the matter of Shelendra Kumar Sharma v. DSC Limited [ 2019 (12) TMI 1643 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] wherein it has been held that the question as to whether documents are forged or not cannot be decided by the Adjudicating Authority. The authenticity of the postal stamps on the postage receipts are not the subject matter which can be decided by the Adjudicating Authority or this Tribunal in view of summary jurisdiction having been conferred on them by the IBC. Enquiry into such allegations and counter-allegations would entail detailed investigation and the legislative intent of the IBC does not clothe the Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound, the Learned Counsel for the Appellant submitted that the Operational Creditor sold steel products to the Corporate Debtor. In the course of their business transactions, 129 invoices had been raised by the Appellant of which 46 invoices remained unpaid by the Corporate Debtor. The unpaid invoices aggregated to an amount of Rs.3,01,89,141/- only which included interest @ 18% per annum. This amount being due and payable by the Corporate Debtor, the Appellant had sent a Section 8 demand notice on 28.06.2019. It was submitted that the Respondent sent reply to the notice much beyond the statutory period of 10 days prescribed by the IBC, thus being non-est in the eyes of law. As no further payment was forthcoming from the Respondent, a Section 9 application was filed by the Appellant. 3. It has been further contended by the Learned Counsel for the Appellant that the Corporate Debtor in order to evade payment of outstanding liabilities created a moonshine defence of pre-existing disputes. Holding the grounds of defence to be only a mirage, it was stated that the first set of fictitious disputes were allegedly raised through three communications. The first two dated 01.07.2017 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery. Moreover, as the credit notes were disclosed by the Respondent through a supplementary affidavit before the Adjudicating Authority, the Appellant was denied an opportunity to deal with the same. It was asserted that the Adjudicating Authority by placing reliance on documents which were not on record had committed an error and hence the impugned order suffers from illegality. 7. Making his submissions further, it was stated that the admission of non-payment of Rs.2,20,00,724/- by the Corporate Debtor is in itself a sufficient ground to admit the Section 9 application. It has been contended by the Learned Counsel for the Appellant that the Corporate Debtor had admitted to the existence of 129 invoices aggregating Rs.10,16,11,515/- against which admittedly a payment of only Rs.7,96,10,791/- was made. Thus, a substantial sum beyond the threshold limit still remained due and payable by the Corporate Debtor to the Operational Creditor. 8. Refuting the above submissions, the Learned Senior Counsel for the Respondent stated that much prior to the issue of Section 8 demand notice, communications had been sent to the Operational Creditor disputing the quality of goods. On 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lox Innovations Pvt. Ltd. Vs. Kirusa Software Private Limited (2018) 1 SCC 353 (hereinafter referred to as Mobilox ). 12. The first set of dispute raised is the issue of credit notes in the context of outstanding dues. It is the case of the Appellant that the Respondent had clearly admitted their liability to pay Rs.2,20,00,724/- in their Account Confirmation Statement of 01.04.2019 as placed at page 253-256 of Appeal Paper Book ( APB in short). Thus, it is a fit case for admission of Section 9 application. It has also been contended that the Corporate Debtor failed to respond to letter dated 05.06.2019 from Operational Creditor seeking outstanding dues. The Learned Senior Counsel for Respondent denied the receipt of letter dated 05.06.2019 and further submitted that the Account Confirmation Statement was a forged and fabricated document and that the Corporate Debtor had therefore filed a police complaint with Hare Police Station on 07.03.2020 to lodge an FIR against the Operational Creditor for use of counterfeit stamp/seal of the Corporate Debtor as placed at page 252 of APB. 13. We also notice that the Corporate Debtor has placed on record counter claims of credit notes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty goods. In the third communication dated 25.04.2019 notifying termination of the contract by the Corporate Debtor on account of failure on the part of the Operational Creditor to improve the quality of their products, it reiterated removal of rejected materials and reserved the right to claim damages. 16. It is, however, the case of the Appellant that the three communications dated 01.07.2017, 03.10.2017 and 25.04.2019 were false and fabricated and had never been delivered to the Appellant prior to issue of demand notice. The letters were purportedly posted with a manually signed postal receipt from a post office at Hide Road . However, based on information as confirmed by the Department of Posts following an RTI query as placed on record at pages297-299 of the APB, it was asserted that there was no post office nomenclated as Hide Road Post Office. There was a post office named Hyde Road but that was already closed on 28.02.2017. The closure of the said post office was prior to the date of issue of the said letters thus raising doubts about these having been issued. That these letters were never delivered is further substantiated by the fact that the postage receipt did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IBC. Enquiry into such allegations and counter-allegations would entail detailed investigation and the legislative intent of the IBC does not clothe the Adjudicating Authority with such powers of investigation. We are thus of the considered view that the Adjudicating Authority has not committed any error by restraining itself from entering into any sort of roving enquiry on this issue. 21. At this stage, what we need to find out is whether these three letters had raised a semblance of dispute and if so whether the dispute is patently feeble. The guiding precepts have been laid down in the ratio of Mobilox supra and the relevant para is extracted as hereunder: 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be used by us in our manufacturing activity, as we has a goodwill reputation in our business sphere, alternatively, if used the said supplied items of BCPL would definitely hampered our said goodwill reputation. We earlier used very few of your supplied materials in our manufacturing process for your kind information, the quality of the finished product/s made out of the said materials was of extreme inferior quality which was not fit to be supplied to our customers. Hence, times without number, we severally requested BCPL and /or your office representatives either to replace the aid materials or to take return back the same issue credit note to us. But, neither of your representatives/officials acted as per our requests hence ultimately the said delivered items served none of our purpose. The said inferior materials are still lying with us has become scrap over a period of time. To maintain good relationship, you are again requested to remove/take back the said materials at any point of time with a prior permission/intimation to us. We, as a business entity definitely would not pose loss and/or hamper our business because of your s deficiency. ( Emphasis suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
