TMI Blog2017 (8) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy and the right of the Applicants before any other forum shall not be prejudiced on account of dismissal of instant application. - COMPANY PETITION NO. (IB)-117(ND)/2017 - - - Dated:- 14-7-2017 - MS. INA MALHOTRA AND S.K. MOHAPATRA, JJ. For The Operational Creditor : Kunal Sabharwal, Adv. For The Respondent : Ajay Kohli and Ms. Priyanka Ghorawat, Advs ORDER 1. This is an application filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the code') read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the rule') with a prayer for initiation of Corporate Insolvency process in respect of Respondent corporate debtor. 2. It is pertinent to mention here that on the first date of hearing on 31.05.2017 notice was ordered to be served on the Respondent Corporate Debtor. Subsequently respondent company put in appearance and defended the application by filing its reply on 04.07.2017. 3. It is the case of the applicant that the applicant operational creditor was appointed by the corporate debtor as its super stockiest for Chandigarh, Punjab, Haryana and Him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Company Invoice value. 8. Reports: SS should ensure that the following reports reach within 7 days of completion of the required calendar month. a. The Stock Sales statement should be prepared on monthly basis. b. The Product wise/distributor wise sale summary be prepared on monthly basis. c. The outstanding payments details of Distributor should be reported to the company on monthly basis. 9. Co-ordination: The Systematic correspondence will be done from SS to the company at email sales a veledalife.in and a copy marked to the Area Sales Manager National Sales Manager at nsm a valedalife.in. 10. Notice Period: Both SS or Company may terminate this agreement with one month's notice in writing and settlement will be made accordingly thereof on terms said herein/specified by the Company from time to time on invoices or otherwise. 11. Jurisdiction: Subject to Delhi jurisdiction only. The above said terms are final as on dated 12th November, 2013. Thanking you, Yours Faithfully, FOR VALEDA HERBAL PVT. LTD. FOR NAME OF BUYER FIRM Name of Person Name of Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these canteens as dead stock and the operational Creditor was at the receiving end at the hands of the Canteen officials who were pressurizing the operational Creditor to take back the dead stock of the products. 9. Further, there were some Distributors/Retail outlet in the market who were holding the products supplied by the Operational Creditor as there is no sale due to lack of market support from the Corporate Debtor. It is alleged that the Corporate Debtor simply dumped its products in the market and the aim of the Corporate Debtor has been fulfilled once it gets the payment of its products from the Operational Creditor. 10. It is the case of applicant that as stated in the application in detail, the corporate debtor has not paid operational debt of ₹ 17,03,797/- to the operational creditor, details of which is as follows: Date Description Amount (Rs.) 04.11.15 Material supplied to the canteens 4,89,822 31.08.14 Unsettled claims/debt notes 4,10,465 02.12.15 Unsettle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant is a direct result of shortcomings in decisions taken by the applicant. 17. It is further emphasised that any replacement of the product can only be made in two conditions firstly, damage of products and secondly in case of expiry of shelf life of product . Even in these two conditions the applicant could at best sought for replacement of the products and that too subject to the discretion of the authorized officer of the Respondent. It is submitted that there was no arrangement and/or term in agreement regarding return of the products by the applicant company to Respondent Company. The Respondent Company denied the fact that the ITBP canteen refused to make payments to the applicant due to any act or omission on the part of Respondent Company. It has been alleged that the declines, if any, in the sales volumes was a direct result of lack of efforts on the part of the applicant. 18. It is submitted that the Respondent company was under no obligation to reimburse any cost or expenses incurred by the applicant towards marketing, display, promotion of the products, payment of the salaries or towards payment of expenses towards hiring of beauty advisors. Further, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied/sold by Respondent Company to the applicant is permissible only in case of damage of products or in case of expiry of shelf life of the products. It is stated that the replacement of products sold as per the term is subject to the discretion of the authorised officer of Respondent Company. The Respondent Company also disputed that all the replacement claimed has not been approved by the authorised officer of the Respondent Company. In such scenario it can only be said that the claim of operational debts in question are not free from dispute. 23. Sub-section (6) of Section 5 of the code defines dispute , to include, unless the context otherwise requires, a suit or arbitration proceedings relating to: (a) existence of amount of the debt; (b) quality of goods or services; (c) breach of a representation or warranty. The definition of dispute is inclusive and not exhaustive . Dispute is not confined only to pendency of suit or arbitration proceedings. The definition of dispute has to be given wide meaning provided it is relatable to the existence of the amount of the debt, quality of goods or services or breach of a representation or warranty. 24. In the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unctive from the expression 'record of the pendency of the suit or arbitration proceedings'. Otherwise, the words 'dispute, if any', in sub-section (2) of Section 8 would become surplus usage. 22. Sub-section (2) of Section 8 of the I B Code' cannot be read to mean that a dispute must be pending between the parties prior to the notice of demand and that too in arbitration or a civil court. Once parties are already before any judicial forum/ authority for adjudication of disputes, notice becomes irrelevant and such an interpretation renders the expression 'existence of a dispute, if any,' in sub-section (2) of Section 8 itiose. 25. The true meaning of sub-section (2)(a) of Section 8 read with sub-section (6) of Section 5 of the I B Code' clearly brings out the intent of the Code, namely the Corporate Debtor must raise a dispute with sufficient particulars. And in case a dispute is being raised by simply showing a record of dispute in a pending arbitration or suit, the dispute must also be relatable to the three conditions provided under sub-section (6) of Section 5 (a)-(c) only. The words 'and recoul of the pendency o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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