9911796707
TMI Blog2023 (7) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... ng supply or quality of the material/ pre-existing disputes. The Corporate Debtor has also taken the plea that the Respondent No. 1 has not furnished documents to prove his claims like weight scale receipt of Dharamkata. On this account the Respondent No. 1 has submitted that he was never required to submit the Dharamkata receipt as it was choice on part of the Corporate Debtor as buyer of the goods to get the products weighted at its end, if so required, and to communicate discrepancy, if any, the Respondent No. 1. The Respondent No. 1 further clarified that even for the invoices admitted by the Corporate Debtor, no Dharamkata receipts have been produced, by the Corporate Debtor as such the plea of the Corporate Debtor about non-submission of documents is prima-facie not convincing. The Corporate Debtor has admitted that there was no formal written contract agreement for supply of material by the Respondent No. 1 and similarly no formal purchase order was issued by him. The Corporate Debtor also admitted that on the representative of the Corporate Debtor used to ask the Respondent No. 1 to supply goods on oral instructions and subsequently payment would be claimed by the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.42% equity in the Corporate Debtor and he is one of the Suspended Director of the Corporate Debtor. Aggrieved by the Impugned Order he has filed the present appeal. 3. Heard the Counsel for Parties and perused the records made available including cited judgments. 4. Learned Counsel for the Appellant gave overall background of the case and alleged that the Impugned Order was passed wrongly as the evidence produced by the Corporate Debtor showing that claims by Operational Creditor were bogus on the basis of 12 fake invoices, were not considered suitably by the Adjudicating Authority. 5. Learned Counsel for the Appellant further alleged that the Respondent No. 1 has shown fake sale being declared using GSTR-1 return and for the same, notice was issued to the Respondent No. 1 by GST Department. 6. Learned Counsel for the Appellant stated that the Respondent No.1 filed an application under Section 9 of the Code for initiation of the Corporate Insolvency Resolution Process (in short CIRP ) on account of alleged default of Rs. 1,56,31,219/- which was refuted by the Corporate Debtor. 7. Learned Counsel for the Appellant mentioned that the Corporate Debtor was incorporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as on 01.04.2018 in the Ledger Account of the Respondent No. 1 was Rs. 1,01,72,740.09/- and the Corporate Debtor has been gradually paying the same on various dates as per running account system of payment. 12. Learned Counsel for the Appellant stated that in background of such cordial relationship based on trust between the Appellant/ Corporate Debtor and Respondent No. 1, the Corporate Debtor was shocked to receive demand notice dated 19.09.2018 demanding Rs. 1,76,10,766/- based on various invoices mentioned in the demand notice. Learned Counsel for the Appellant further stated that the upon receipt of such demand notice, he sought details from the Respondent No. 1 about various invoices which were not received by the Corporate Debtor. Learned Counsel for the Appellant submitted that during the negotiation between the parties to settle the matter, the Corporate Debtor received another demand notice on 20.03.2019 for Rs. 1,61,10,767/-. 13. Learned Counsel for the Appellant submitted that admittedly the Corporate Debtor could not pay of Rs. 31,20,149.39 as on 31.03.2019 pertaining to- (a) Invoice No. 918 dated 23.03.2018 for Rs. 10,62,345/-; (b) Invoice No. 227 dated 19.05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.04.2018 Rs. 6,22,306/- 07. 349 16.06.2018 Rs.11,21,779/- 08. 350 16.06.2018 Rs. 12,89,749/- 09. 359 18.06.2018 Rs. 12,15,431/- 10. 360 18.06.2018 Rs. 12,71,858/- 11. 402 30.06.2018 Rs. 11,67,651/- 12. 403 30.06.2018 Rs. 12,58,708/- 17. Learned Counsel for the Appellant submitted that for the 12 invoices attached by the Respondent No. 1/ Operational Creditor with the Application as mentioned above, the Respondent No. 1 has neither supplied the above said invoices nor copies of any documents to the Corporate Debtor. 18. Learned Counsel for the Appellant submitted that the material supplied by the Operational Creditor used to be weighed at the nearest Dharam Kanta at the Work site of Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent No. 1 submitted that on 19.09.2018, the Respondent No. 1 has issued first demand notice under Section 8 of the Code for Rs. 1,76,10,767/- for which the Corporate Debtor requested the Respondent No. 1 not to initiate any legal proceeding with assurance to make payments shortly and made payment of Rs. 15 Lakhs accordingly. Learned Counsel for the Respondent No. 1 submitted that no dispute was raised by the Corporate Debtor at that stage. Learned Counsel for the Respondent No. 1 submitted that since the Corporate Debtor failed to make payments post first demand notice, the Corporate Debtor issued second demand notice dated 20.03.2019 for Rs. 1,61,10,767/-. Learned Counsel for the Respondent No. 1 further stated that subsequent to second demand notice, the Corporate Debtor again paid Rs. 5 Lakhs and undertook to settle the entire liability in due course, which the Corporate Debtor again failed to adhere to. Subsequent to all these events, the Respondent No. 1 was compelled to file an application under Section 9 of the Code and during the course of various hearing the Corporate Debtor mentioned before the Adjudicating Authority about intent of the Corporate Debtor to settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant has claimed the input tax credit for the invoices raised by the Respondent No. 1, but denied the said invoices before the Adjudicating Authority to run away from its liability for payment of invoices. 30. Learned Counsel for the Respondent No. 1 submitted that he had supplied materials to the Appellant even after 19.05.2018 and accordingly raised various invoices during that period and the last invoice issued by the Operational Creditor against the supply of material to the Corporate Debtor was for an amount of Rs. 12,58,708/- dated 30.06.2018. Learned Counsel for the Respondent No. 1 stated that the Respondent No. 1 had duly paid the VAT and GST amount (as the case may be) for each and every invoices being raised against the supply of material to the Corporate Debtor. 31. Learned Counsel for the Respondent No. 1 submitted that he had supplied various lots of material to the Corporate Debtor during the course of their business relationship and accordingly issued invoices for the said lots of material supplied to the Corporate Debtor and after adjusting all the amount received from the Corporate Debtor in the running account maintained by the Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent may file Reply within two weeks. Rejoinder may be filed within two weeks thereof. Learned counsel for the parties submit that the CoC has not yet been constituted. Subject to deposit of the aforesaid amount, in pursuance of impugned order dated 21.02.2022, CoC shall not be constituted. In the meantime, it shall also be open for the parties to enter into settlement, if any. List the Appeal on 18.04.2022. (Emphasis Supplied) 35. We also note that Mr. Adarsh Tiwari, Advocate for the Appellant had deposited Rs. 1,06,31,219/- by way of two Demand Draft as per these letters dated 21.03.2022 which is seen as under :- 36. Subsequently various dates were notified for hearing before this Appellate Tribunal i.e., 18.04.2022, 29.04.2022, 13.05.2022, 02.06.2022, 05.07.2022, 20.07.2022, 30.08.2022, 18.10.2022 16.01.2023. 37. During hearing before this Appellate Tribunal on 16.01.2023, it was brought to the notice of this Appellate Tribunal that the settlement did not arrive between the parties despite the orders passed by this Appellate Tribunal, and the following order was passed pm 16.01.2023 :- In terms of the order dated 18.10.2022, the Ld. Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh verbal communication or telephonic conversation. We also noted that subsequent to supply of such TMT Bars to the Corporate Debtor, the Respondent No. 1 used to raise the concerned invoice regarding supply of said material and indicated the payments to be made by the Corporate Debtor. 43. It is also observed that the business relationship between both the parties started in 2015 and was continuing till middle of 2018. The Corporate Debtor fairly accepted that the Respondent No. 1 had supplied material worth Crores of Rupees during the period and Corporate Debtor was also making payment based on Running Account Manner . The Corporate Debtor explained that payment made by the Corporate Debtor were required to be adjusted for the invoices issued by the Respondent No. 1 in successive order i.e. running payment made by the Corporate Debtor was required to be adjusted by the Respondent No. 1 for the previous pending bills. According to the parties, the payments were being made from time to time, however due to financial crises faced by the Corporate Debtor there have been delays/ defaults in payment to the Respondent No. 1. 44. We also take into consideration desire of the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was maintaining Ledger Account and was paying on the basis of Running Account Manner , as such the plea regarding over payment, if any, is not convincing to us. 49. The Corporate Debtor has admitted that there was no formal written contract agreement for supply of material by the Respondent No. 1 and similarly no formal purchase order was issued by him. The Corporate Debtor also admitted that on the representative of the Corporate Debtor used to ask the Respondent No. 1 to supply goods on oral instructions and subsequently payment would be claimed by the Respondent No. 1 based on invoices issued by him to the Corporate Debtor. Hence, there cannot be any dispute regarding payment being made on the basis of invoices issued by the supplier of the material, here in case, by the Respondent No. 1. 50. We take into consideration that the various invoices which have been relied upon by the Respondent No. 1 had been attached with the application filed before the Adjudicating Authority under Section 7 of the Code. On this account, it may also be pertinent to note that these invoices have stated to been reported in the GST returns and necessary ITC have also been claimed. It is the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
