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2022 (2) TMI 147 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - discrepancies found in the claim of Appellant/Operational Creditor and objections raised by the Respondent/Corporate Debtor - three invoices and related delivery of goods or dispute of a price - HELD THAT:- Regarding Invoice 1 the Respondent's claim is that there are two invoices, one a handwritten one and other the computerized copy, and both state different price rates for the same goods - The relevant invoice is the computerized invoice, which is the same as issued by the Appellant to the Respondent for many other supplies, and the price rate mentioned in the invoice is the rate prevailing on the day the supply was actually made. The Appellant has also said that the issue of short supply raised by the Respondent is basically due to the different weights recorded at different weigh bridges and the Appellant has given due credit for the short supply claimed by the Respondent. Thus the Appellant has given credit for the deficient weight which was claimed by the Respondent. With regard to Invoice 2, the Respondent has disputed the delivery of goods pertaining to the said invoice though the Appellant has claimed that vide mail dated 11.4.2017, the Respondent had confirmed the delivery of goods - Appellant had to submit unimpeachable proof of delivery of goods to establish his case under section 9 of IBC. Such evidence was also necessary since the respondent had disputed delivery of goods in his reply to the demand notice. Therefore, we are inclined to believe the claim of the Respondent that the goods were actually not delivered at the site. Regarding Invoice 3, the Respondent has alleged that it is forged and fabricated and has also disputed the signature on the left bottom corner of the tax invoice which is claimed by the Appellant as evidence of supply of goods to the Respondent - Though the Appellant has claimed that the same lorry carried both Bitumen and Emulsion to the site of the Respondent he has not submitted any proof of the same and moreover, in the absence of any receipt of the delivery of Bitumen at the site of the corporate debtor we are not convinced that the goods (Bitumen) claimed to have been supplied vide Invoice 3 were actually received by the corporate debtor/respondent. The Appellant has not been able to show convincingly that it had actually supplied materials relating to Invoice 2 and invoice 3 as claimed. We also agree with the Respondent that it could raise the dispute regarding non-supply for the first time in its reply to the demand notice under section 8 as it did not have knowledge of the said Invoices 2 and 3 before it received the demand notice. These disputes therefore relate to the dates of purported invoices and in this sense they are legitimate disputes and not sham disputes - the application under Section 9 filed by the Appellant lacked merit and was correctly rejected by the Adjudicating Authority by the Impugned Order. Appeal dismissed.
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