2023 (6) TMI 852 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI

CIRP - Admissibility of application - pre-existing dispute - disputes were not raised prior to the issuance of the Demand Notice - disputes regarding the performance of the Engine and the quality of the spares that were supplied - HELD THAT:- It is clear that the service recipient ‘agrees to make payment irrespective of the fact whether the said engine is in operation or not at the time of the payment dates as above.’ This term categorically binds the Corporate Debtor to the payment of instalments.

It is found that no dispute regarding the quality of the spares was raised as on 11/09/2019. The MoU is dated 11/07/2018, the first supply of spare parts was made on 23/10/2018 and this email is dated 11/09/2019, from which it can be noted that a period of more than 13 months has lapsed. So, the contention of the Learned Counsel that it is only after the lapse of some time that the Engine efficiency can be ascertained and therefore, the lapse of 13 months from the date of supply of spare parts and 7 months of the Engine being made operational on 03/04/2019 for raising any dispute is justified, cannot be accepted.

In the instant case, the material on record evidences that the dispute raised is spurious, hypothetical and illusory as it was raised only after several months of supply and further there was also a Meeting, whereby there was an attempt to make a part payment. At this juncture, this ‘Tribunal’ pertinently points out that although the reply of the ‘Corporate Debtor’ was not taken on record by the ‘Adjudicating Authority’, all the issues raised by the Appellant have been addressed.

The case of the Appellant that it was ‘only after a lapse of some time’ that the engine efficiency can be ascertained and therefore, the lapse of 13 months in raising the dispute of the spare parts is justified cannot be sustained as ‘there is no specific time frame’ which is established by way of technical specifications to be guided by / or which were mentioned in the MoU with respect to this issue. The fact remains that the spare parts were supplied way back on 25/10/2018 and the first issue was raised almost 11 months thereafter. There is nothing on record to establish that 11 months’ time is required to ascertain the efficiency of an engine - this Tribunal is of the considered opinion that the dispute raised by the Corporate Debtor is only illusionary and moonshine.

There are no substantial grounds to interfere with the Order of the ‘Adjudicating Authority’ and hence this Appeal fails - appeal dismissed.