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TMI Blog2023 (5) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant themselves and refund was also allowed, the poor quality of coal stood admitted by the Appellant. There was sufficient foundation of genuine disputes between the two parties and the same is amply supported by material on the record. It is not the remit of IBC to investigate all related contractual disputes and look into their merits as long as it suffices that a plausible defence has been raised as has been done in the present case. In the present factual matrix, the defence raised by the Corporate Debtor cannot be held to be moonshine, spurious, hypothetical or illusory - the Adjudicating Authority did not commit any error in rejecting the Section 9 Application filed by the Appellant on the ground of pre-existing dispute. There is no merit in the Appeal - Appeal is dismissed. - Company Appeal ( AT ) ( Insolvency ) No. 1343 of 2022 - - - Dated:- 26-5-2023 - [Justice Ashok Bhushan] Chairperson And [Barun Mitra] Member (Technical) For the Appellant : Mr. Ravi Raghunath, Advocate For the Respondent : Mr. Vikram Hegde, Mr. Abhinav Hansaraman, Mr. Manoj Harit, Advocates JUDGMENT [ Per : Barun Mitra, Member (Technical)] The present appeal filed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2020 arising out of the decree passed by the Hon ble Bombay High Court on 14.12.2018. 4. The Learned Counsel for the Appellant stated that the Adjudicating Authority had erroneously dismissed the Section 9 application on the ground that there was a pre-existing dispute between the parties with regard to quality of goods supplied by the Appellant as raised by the Corporate Debtor. 5. Advancing their side of arguments, the Learned Counsel for the Respondent while admitting the HSSA of 24.05.2014, however, vehemently contended that there was a dispute between the two parties which was raised by them in their email of 15.10.2014 wherein it was clearly stated that the coal supplied by the Appellant was of poor-quality having Sulphur content beyond contracted levels as per test report of 29.09.2014. Moreover, owing to poor quality, the Corporate Debtor had lifted only 633.94 MT of coal against the contracted amount of 4000MT and cancelled the contract. Due to poor quality of coal, it was claimed by the Learned Counsel for the Respondent that the Appellant refunded Rs.80 lakhs on 21.10.2014 as payments for the coal consignment had been made in advance. It was also stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered. It has been asserted that the modus operandi of the business of high seas sale purchase transaction has been twisted by the Learned Counsel for the Appellant to create a misleading perception that goods have been received and onward delivery made in the high seas besides pointing out that the issue of onward sales was never raised as a ground by the Appellant before the Adjudicating Authority. 9. It was pointed out that the Corporate Debtor had not lifted 3366 MTs of coal out of the total invoiced quantity of 4000 MTs due to excess sulphur content. That the coal supplied was of inferior quality was raised by the Corporate Debtor in their email of 15.10.2014. Further, the very fact that the Operational Creditor had refunded a sum of Rs.80 lakhs in two tranches on 20.10.2014 and 21.10.2014 post their invoice of 15.09.2014 clearly establishes that coal supplied suffered from inferior quality. The Learned Counsel for the Appellant claimed that the email of 15.10.2014 which has been relied upon by the Adjudicating Authority to hold that there was pre-existing dispute was misconceived since the email vaguely stated that the cargo has been rejected without making any refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rejecting the cargo was ascribed to Sulphur content, in a subsequent letter of 31.01.2015 it has been stated that the Operational Creditor had not permitted the Corporate Debtor to lift the balance quantity of 3366 MTs. It has also been submitted that the letter of 31.01.2015 was dispatched by the Corporate Debtor on 10.09.2015 which was received by the Operational Creditor on 14.09.2015 as placed at page 134-135 of reply affidavit. It has also been denied that any advance money was paid by the Corporate Debtor in relation to the invoice dated 15.09.2014 and that the refund of Rs.80 lakhs was in respect of another transaction which related to MV Pacific Pioneer . It is therefore been contended that the defence raised by the Corporate Debtor being spurious deserves to be rejected. 14. The Adjudicating Authority has relied upon the judgement of the Hon ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Private Limited (2018) in C.A. No.9405 of 2017 (MANU/SC/1196/2017) ( Mobilox in short) for not admitting the Section 9 application. If we apply the above-cited test laid down by the Hon ble Supreme Court to the facts of the present case, it is clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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