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TMI Blog2025 (3) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... rational Creditor. Existence of pre-existing dispute or not - HELD THAT:- There is continuous exchange of e-mails between the Operational Creditor and the Corporate Debtor regarding the differences in the accounting entries and the final email exchanged is dated 25.05.2018, wherein the Corporate Debtor had clearly stated no amount is payable to M/s Satkar Logistics Pvt. Ltd. - On perusal of the reply to Section 8 notice, we find that Corporate Debtor had clearly stated no amount is due to the Operational Creditor. This Tribunal in [LAINA POWER ENGINEERING VERSUS SOKEO POWER PRIVATE LIMITED] [2018 (9) TMI 1044 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] had relied upon the emails exchanged between the parties prior to issue of demand notice under Section 8 of the IBC, 2016 as evidence of pre-existing dispute. The Hon'ble Supreme Court in M/s S.S. Engineers & Ors. v. Hindustan Petroleum Corporation Ltd. [2022 (9) TMI 377 - SUPREME COURT] has held that the application under Section 9 was rightly rejected on the grounds of preexisting dispute. The Hon'ble Supreme Court in the case of Sabarmati Gas Limited v. Shah Alloys Limited, [2023 (1) TMI 195 - SUPREME COURT] has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Corporate Debtor on 07.03.2019. v. Before the Ld. NCLT, the Corporate Debtor took the defence of pre-existing dispute, as also that the claim is barred by law of limitation. vi. The Operation Creditor on the other hand stated that dispute was raised only after receipt of Section 8 notice. vii. The Ld. NCLT held that the application was within limitation as the last payment was made by the Corporate Debtor on 19.10.2016, and the petition was filed within three years of the last payment. The relevant portion of the impugned order admitting the Corporate Debtor into CIRP is reproduced below for ready reference: "7. We have heard-Ld. Counsels for both the parties at length, perused the application before us as well as the written submissions filed by the parties. The case laws relied upon by both sides have also been considered by us. It is seen that Operational Creditor has issued notice under section 8 of the Code on 27.2.2019 and the said notice has been duly replied by Corporate Debtor on 7.3.2019, and the present Application has been filed on 14.8.2019. In its reply dated 7.3.2019 the Corporate Debtor has only raised issues with regard to certain payments not being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cheques & NEFT) Year 2014 to till date - Rs.261439.00 2- Payment refund of Ambassador Logistics Year 2014-2015 - Rs.242978.00 3- TDS amount F.Y. 2013-2014, F.Y. 2014-2015 - Rs. 24589.00 4- Closing & Opening Balance F.Y.2013-2014, F.Y.2014-2015- Rs. 7501.00 5- Wrong Invoice Year 2014-15 - Rs. 90337.00 6- Invoice amount not as per agreed rate Year 2015-2016 - Rs. 67258.00 Total amount to be settled in A/C of Satkar Logistics Pvt. Ltd - Rs.694102.00" 4. The Learned Counsel for the Appellant referred to page 216 to 222 of the Appeal Paper Book containing emails exchange between the Corporate Debtor and the Operational Creditor. The last three emails are dated 18.05.2018 (at page 222 of Appeal) from Operational Creditor to Corporate Debtor, 24.05.2018 (at page 220 of Appeal) from Corporate Debtor to Operational Creditor and finally email sent on 25.05.2018 (at page 220 of Appeal) from Corporate Debtor to Operational Creditor wherein the Corporate Debtor had clearly stated that as per their books of account and bank statement nothing is payable to M/s Satkar Logistics Pvt. Ltd. This final email dated 25.05.2018 is reproduced below : 5. It is submitted the said emai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor had clearly stated no amount is due to the Operational Creditor. This Tribunal in order dated 16.08.2018 Company Appeal (AT) (Insolvency) No. 452 of 2018 (supra) had relied upon the emails exchanged between the parties prior to issue of demand notice under Section 8 of the IBC, 2016 as evidence of pre-existing dispute. 13. The Hon'ble Supreme Court in M/s S.S. Engineers & Ors. v. Hindustan Petroleum Corporation Ltd. in Civil Appeal No. 4583 of 2022 (supra) has held that the application under Section 9 was rightly rejected on the grounds of preexisting dispute. The relevant portion of the order is reproduced below for reference: "30. This Court finds that there was a pre-existing dispute with regard to the alleged claim of the appellant against HPCL or its subsidiary HBL. The NCLAT rightly allowed the appeal filed on behalf of HBL. It is not for this Court to adjudicate the disputes between the parties and determine whether, in fact, any amount was due from the appellant to the HPCL/HBL or vice-versa. The question is, whether the application of the Operational Creditor under Section 9 of the IBC, should have been admitted by the Adjudicating Authority. The answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observation in Mobilox Innovations that in doing the act of separating the grain from chaff the Court need not to be satisfied that the defence is likely to succeed. It is enough that a dispute exists between the parties and in other words, what is to be seen is whether there was a plausible contention requiring investigation for the purpose of adjudication. Taking note of the nature of the dispute of the respondent as referred hereinbefore in respect of the claim made by the appellant, we do not find any reason to disagree with the concurrent findings of the Tribunals that there existed a 'pre-existing dispute' between the parties before the receipt of demand notice under Section 8 IBC. In other words, the dismissal of the application under Section 9 IBC on the ground of 'pre-existing dispute' cannot be held to be patently illegal or perverse. We also do not find any reason, in the facts and circumstances, to hold that the case set up by the respondent was a patently feeble legal argument. At any rate, we are not inclined to brush aside the case of the respondent as spurious. 57. We may hasten to add here that we shall not be understood to have held that the dispute set by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply dated 08.08.2020 to the Section 8 demand notice had disputed both the quantum of operational debt and also deficiencies in respect of discharge of contractual obligations by the Operational Creditor. ............ 12. We also notice that even prior to receipt of demand notice dated 29.07.2020, the Corporate Debtor on 18.07.2020 had refused to accept the outstanding operational debt, interalia, on the ground of reconciliation of accounts. We also notice that at page 855 of Appeal Paper Book ('APB' in short), the Operational Creditor in their counter affidavit dated 15.12.2021 to the additional affidavit dated 27.09.2021 filed by the Corporate Debtor has on their own admitted that they had given numerous reminders to the Corporate Debtor prior to 18.07.2020 to reconcile the account. The Adjudicating Authority has also taken note of the fact that since the Appellant had themselves sent email to the Corporate Debtor on 31.08.2018 and 04.09.2019 for reconciliation of accounts, that by itself shows that there existed a dispute between the parties regarding the amount of debt due and the requirement for reconciliation of accounts as both the parties were having counter claims a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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