9911796707
TMI Blog2017 (7) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... as it was on 29.03.2017. The aforesaid amount has been claimed alongwith interest thereon @ 12% per annum from the date the amount was due till the date of its payment. 2. Brief facts of the case necessary for disposal of the controversy raised are that the Corporate Debtor, Shilpi Cable Technologies Limited approached the Supplier and offered to purchase Copper Rods on credit. The 'Applicant'-Operational Creditor is a company incorporated under the laws of Australia and claims to be a leading financial service provider and trade related insurance solutions provider. The application has been filed through its Power of Attorney holder, Mr. Sahil Bhatia, who has been duly authorised vide Power of Attorney dated 06.02.2017 (Annexure-2). The Corporate Debtor is a company incorporated under the provisions of the Companies Act, 1956, which has its registered office at New Delhi. 3. The debt originates from a transaction of supply of Copper Rods by the supplier. The Corporate Debtor had offered to purchase the Copper Rods. After various round of discussion, parties entered into a contract of sale and purchase of copper rods on 18.01.2016. It is evident that the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered office address as well as the other address of the Corporate Debtor-Respondent and the same has been duly received by it. A copy of the demand notice dated 08.03.2017 has been placed on record (Annexure-12). 7. The Corporate Debtor sent its reply on 20.03.2017 to the Demand Notice. It does not state or disclose record of existence of and/or pendency of any suit or arbitration proceedings filed before the receipt of the Demand Notice as contemplated by Section 8(2)(a) of the Code. In fact the Corporate Debtor in its reply has acknowledged the outstanding amount and has requested some more time to settle the accounts on the ground that they were under financial hardship. A copy of the reply has been placed on record (Annexure 13). The Applicant (Operational Creditor) has sent rejoinder reply dated 28.03.2017 to the Corporate Debtor (Annexure-14) declining their request for extension of time. 8. In the aforesaid facts and circumstances the Operational Creditor has alleged that the Corporate Debtor is unable to pay its debts or it must be deemed to be unable to pay its debts. The Corporate Debtor appears to be in grave financial difficulty and is otherwise in commercially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent of the Insurance Company, M/s. Unified Credit Solutions Pvt. Ltd. on 05.12.2016 (R-2). Another email dated 17.04.2017 was also sent by the Insurance Company to the Corporate Debtor (R-3) stating that they have agreed to support the Corporate Debtor's repayment plan subject to fulfilment of certain obligations by it. It has also been submitted that agreement dated 18.1.2016 entered into between the supplier and the Corporate Debtor is governed by the English law and the Applicant is estopped from initiating any action under the Indian law. All proceedings or claims or disputes or controversy arising out of the agreement dated 18.01.2016 are governed by and its terms are to be interpreted in accordance with English Law. In that regard, a reference has been made to clause 6.1 of the agreement which is to the effect that the agreement would be governed by and construed in accordance with English law and there is specific bar on initiating court proceedings except only for interlocutory relief as per the mandate of clause 6.2 of the agreement. A reference has also been invited to clause 6.4 to submit that any dispute arising out of or in connection with the agreement were to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 On facts, it is evident that the claim made by the Applicant is after defraying the part payments already made which come to US$3,010,150.00. 12. The Corporate Debtor has also raised the issues concerning damage to reputation by sudden termination of the agreement causing financial crisis in its company. It has also been reflected in paras 27 & 28 that proposal for gradual tapering down of debt was made but without considering the same demand notice was sent by the Applicant on 08.03.2017. 13. We have heard the learned Counsel for the parties at length. 14. It is not disputed that the Corporate Debtor has not been able to pay its debt in accordance with the terms and conditions of agreement dated 18.01.2016. The aforesaid fact in terms has been admitted. It satisfies the provisions of Section 4 of the Code that the default amount is more than rupees one lac. The Applicant also fulfills the requirements of Section 5(20) & Section 5(21) of the Code. The application has been filed in the jurisdictional bench at New Delhi which meets the requirement of Section 60 of the Code. All legal documents as per the requirement of Section 8 & 9 of the Code have been placed on record which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitration proceedings have been triggered as notice in terms of clause 6.4 of the agreement has been issued by the Corporate Debtor against the supplier on 19.04.2017(R-4) and with the issuance of notice, the arbitration proceedings are deemed to have commenced. Again, the aforesaid argument is liable to be rejected because under Section 8(2)(a) of the Code, the Corporate Debtor is required to bring to the notice of the Operational Creditor within a period of ten days of the receipt of the demand notice or a copy of the invoice mentioned in sub-section (1) that there is an existence of a dispute and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute have been placed on record. It is a conceded fact that in the present case, notice of demand for unpaid debt under Section 8(1) of the Code by the Applicant (Operational Creditor) was issued on 08.03.2017 and the reply by the Corporate Debtor was sent on 20.03.2017. The notice for interim arbitration as per their own showing of the 'Corporate Debtor' has been issued on 19.04.2017, which is much later than the receipt of demand notice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the 'Operational Creditor' had already initiated execution proceedings and, therefore, it was much before the date of issuance of notice of demand under Section 8 of the Code. It was in those circumstances we did not admit the Petition and dismissed the same. 19. Another argument based on the judgment rendered in the case of One Coat Plaster v. Ambience (P.) Ltd., [Company Application No. (l.B)07/PB/2017] has also not impressed us because in that case after examining the controversy on merit we have concluded that there is a valid dispute between the parties. The aforesaid views are also commended to us because the information utility has not yet been started. In the present case the Operational Debt has not been disputed and the arbitration has not been disputed. A reference to arbitration notice or civil suit has to be reached before the receipt on demand notice in accordance to the expressed provision of code. In case there is genuine dispute concerning quality and quantity then it may be considered on merit by the Tribunal. Accordingly, we find that there is no dispute raised with regard to quality and quantity. Accordingly, the argument fails and the same has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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