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TMI Blog2023 (8) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... rider subject to the claims lodged is a very generic statement without any specific reference to past disputes and thus devoid of plausibility. Objections in terms of claims lodged , if relatable to existing disputes, should have been brought to the pointed notice of the Operational Creditor which has clearly not happened in the present case - when the Corporate Debtor had admitted the outstanding debt and agreed to pay the same, it amounts to clear acknowledgment of debt being due and payable and belies the existence of any dispute. Whether the debt arising out of the invoices fell during the period which attracts the bar of Section 10A of IBC? - HELD THAT:- There are no hesitation in observing that in the present case, all requisite conditions necessary to trigger CIRP under Section 9 stands fulfilled with operational debt having been acknowledged and default committed thereto and there being no real pre-existing disputes discernible from given facts. The Adjudicating Authority has rightly admitted the application of the Operational Creditor filed under Section 9 of IBC - at the impugned order does not warrant any interference. There is no merit in the Appeal. The App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-existing disputes and erroneously admitted the Section 9 application. It was also submitted that the Adjudicating Authority had wrongly treated a communication dated 23.07.2021 sent by the Corporate Debtor to Citi Commercial Bank as an acknowledgment of debt. It was also pressed that the date of default in respect of the debt claimed by the Operational Creditor fell during the period 25.03.2020 to 24.03.2021 which attracted Section 10A of the IBC and therefore stood barred. Submission was also made that there was no indication of date of default in the demand notice or in the Section 9 application. This constituted sufficient reason for non-admission of the Section 9 application. 4. Submitting the rival contentions, the Learned Counsel for the Respondent No.1 vehemently contended that the letter addressed to the Citi Commercial Bank by the Corporate Debtor amounts to be a clear and unconditional acknowledgment of the debt. The debt so acknowledged having not been repaid by the Corporate Debtor amounts to default and there being clear debt and default, the Adjudicating Authority had rightly admitted the Section 9 application. Moreover, since the communications by which disputes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Bank, it has also been pointed out that an email dated 13.05.2021 was sent by the Corporate Debtor to the Operational Creditor acknowledging that an amount of Rs.2,15,20,344/- was outstanding and agreeing to make 7.5% extra payment towards these dues. 8. We notice that both these communications have been taken cognizance of by the Adjudicating Authority and reproduced at paras 23 and 24 of the impugned order. Basis the above communications, the findings returned by the Adjudicating Authority is as reproduced below: - 25. On perusal of the aforesaid email, this Bench observed and have the clear picture in mind that the Corporate Debtor acknowledges the amount due which is to be repaid by the Corporate Debtor to the Operational Creditor. Thus, it clearly shows that there is a clear debt and default by the Corporate Debtor in repaying the outstanding amount with respect to pending invoices (supra) to the Operational Creditor. 9. From a plain reading of the above communications, there arises no doubt that the Corporate Debtor had acknowledged the outstanding amount which was due and payable to the Operational Creditor. Not only was the outstanding amount acknowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the contents written in the letter dated 23.07.2021, clearly shows that the Corporate Debtor acknowledged the invoices as per their books of account as on 23.07.2021 and also promised/confirmed that they will clear the said invoices. Hence, the contention with regard to pre-existing dispute is not sustainable on perusal of letter dated 23.07.2021 and hence rejected. 12. We are inclined to agree with the findings of the Adjudicating Authority that at the time of acknowledging the outstanding operational debt, the question of any pre-existing dispute having subsisted lacks foundation. This is validated by the fact that the Corporate Debtor has sent a communication dated 29.04.2021 which is seen at page 234 of the Appeal Paper Book ( APB in short) wherein the Corporate Debtor has clearly admitted their inability to clear the outstanding debt as they were facing difficulties in maintaining their cash flow without any trace or reference to disputes. 13. The only defence which has been raised by the Appellant to contend that there were pre-existing disputes surrounding the outstanding debt is their email dated 13.05.2021 wherein they had agreed to pay 15% extra payment toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above, it has been submitted by the Learned Counsel for the Respondent No.1 that the Corporate Debtor had placed four purchase orders which find place at pages 272-275 of APB. Of the four purchase orders, only two purchase orders (3rd and 4th purchase orders) make reference to the creation of LC of 90 days. As regards the other two purchase orders (1st and 2nd purchase orders), there was no such stipulation of 90-day LC. Hence in respect of these two purchase orders, the date of default was the date of invoice. It was stated that the invoices raised under the 4th purchase order were anyways already excluded. It was further submitted that even if the 3rd and 4th purchase orders are excluded, the first two purchase orders cumulatively amount to default which is above the threshold limit of Rs.1 crore necessary for filing an insolvency application. We are satisfied with the reasoning offered by the Operational Creditor and do not find any force in the contention of the Appellant. 17. We have no hesitation in observing that in the present case, all requisite conditions necessary to trigger CIRP under Section 9 stands fulfilled with operational debt having been acknowledged and de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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