Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2022 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (7) TMI 579 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is observed that the so-called debit note issued by the corporate debtor vide e-mail dated 22.5.2018 which is attached at page 182 of the appeal paperbook, does not contain any particulars regarding the date of issue, PAN, GSTIN, UIN of the corporate debtor nor it is signed by any representative of the corporate debtor. The respondent has also not presented any document or brief in support of the fact that the said debit note was actually issued for return of defective goods and that the defective goods were actually returned to the operational creditor - It is found that there is no communication from the corporate debtor regarding any defect or quality of the goods supplied sent to the operational creditor nor there is any evidence of the defective goods being returned to the operational creditor after raising a demur or protest about its quality. It can thus be concluded that there is no material on record to suggest that were not returned for any defect in quality and it was only 2 years later in 2018 that the purported debit note was raised - it does not appear to be a debit note which inspires confidence and which can be taken to indicate pre-existence of dispute regarding the quality of supplied goods. Moreover the three emails sent on dates 2.7.2018, 5.9.2015 and 5.12.2018 are actually internal emails of the corporate debtor and not sent to the operational creditor raising any dispute about the quality of goods supplied by the operational creditor. The Hon’ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] held that the dispute should actually exist, and it should not be spurious, hypothetical or illusory, for the rejection of the application on the basis of pre-existing dispute - In this case, the dispute is spurious, fabricated and hypothetical. Therefore, the conclusion of the Adjudicating Authority is that the dispute existed before the issue of demand notice under section 8 and thereafter section 7 application is erroneous. Since the section 9 application was rejected only on the ground of ‘pre-existing dispute’, the application is admitted for initiation of Corporate Insolvency Resolution Process against the corporate debtor - The matter is sent to the Adjudicating Authority for issuing the necessary orders consequent to admission of section 9 application within 15 days of this judgment.
|