TMI Blog2017 (11) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... also made on 12.05.2016 as depicted in the bank statement filed by the petitioner to start a fresh period of limitation. Dispute raised by the respondent disentitling the petitioner to an order of admission - As referred to email dated 06.01.2016 at the bottom of page 626 of Annexure VI sent by the respondent, wherein it was admitted that an amount of ₹ 70,53,180/- was still to be paid to the petitioner and invoices worth ₹ 34.68 lacs were adjusted against the advance payment. It was further stated that invoices worth ₹ 22.32 lacs were rejected and invoices for ₹ 1.05 lacs were not submitted. The petitioner responded to this email and after more than 1 ½ years, vide email dated 11.08.2017 as at page 626 claiming outstanding amount of ₹ 2,18,19,462/-. In view of the facts discussed above, there is clearly an existing dispute between the parties disentitling the petitioner to an order of admission. Whether the demand notice sent by the petitioner is valid in the eyes of law? - It is well settled principle of law that entries in the ledger account of the petitioner cannot fasten liability on the respondent. The basic documents were only the invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-Corporate Debtor vide email dated 30.05.2017 Annexure II (Colly). 4. The service of demand notice is not a disputed fact and the respondent rather sent reply to this notice Annexure III dated 08.06.2017 disputing the claim. Since the amount was not paid, the application under Section 9 of the Code has been filed after the expiry of ten days of the service of demand notice. 5. The respondent is a company incorporated under the Companies Act on 09.12.2003 and was allotted CIN - U32204HR2003PTC035635. The authorised share capital of the respondent is ₹ 225 crores and paid-up capital is about ₹ 224.265 crores. It has its registered office at Gurgaon (Gurugram) and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 6. The facts of the case briefly stated are that the parties entered into Frame Agreement dated 23.08.2010 and then Master Service Agreement dated 25.07.2012. The parties then signed supplementary agreement dated 08.10.2012. The petitioner started to provide the services under all the three different agreements. At the initial stage the payments were received from the Corporate Debtor on time. The operational creditor rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whney, Resolution Professional to act as Interim Resolution Professional, who has filed the written communication in Form No.2 as Annexure XI. The perusal of the written communication shows that it conforms to the requirement of the Rules and no defect in the same has been pointed out on behalf of the respondent. The certificate of Registration dated 30.06.2017 by IBBI in favour of Mr. Sawhney is also enclosed. 11. Copy of the petition along with the entire paper book was despatched to the Respondent-Corporate Debtor at both the addresses by speed post on 19.08.2017 and admittedly received by the respondent. 12. Notice of this petition was issued to the respondent to show cause as to why this petition be not admitted. The respondent has filed reply to contest this petition. The contents of the reply are supported by the affidavit of Mr. Roshan Verma in whose favour, the Board of Directors of the respondent company has passed resolution dated 05.09.2017. 13. It is averred that the petitioner has not filed the relevant bank statement/certificate required by law in support of the petition. It is further stated that the parties are having business transactions since the year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and perused the record quite extensively with their able assistance. 17. The first contention of learned counsel for the respondent is that the certificate from the Financial Institution is not in conformity with the requirement of Section 9 (3) (c) of the Code. The certificate issued by the Corporation Bank dated 12.07.2017, where the petitioner is maintaining its account is at Annexure IX at page 1004. It states that till date, the Bank has not received any credit from the respondent ZTE Telecom India Private Limited since 12.05.2016 except an amount of ₹ 6969/- received on 18.05.2017. It is further submitted that the bank certificate should contain complete information from the year 2011 till date and that the certificate relied upon is not sufficient compliance. I am unable to agree with this contention, as there is no such requirement from the plain language of the provision. Section 9 (3) (c) of the Code says that the operational creditor shall, along with the application furnish a copy of certificate from the financial institutions maintaining account of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is merely bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. So, the facts of the case have to be considered in view of the above settled principal of law. The reply dated 08.06.2017 sent by the respondent to the demand notice is the defence, which has been taken in the written reply in this case. 23. Whether there was an existing dispute between the parties is the basic question. Learned counsel for the respondent vehemently contended that the parties are bound by the terms of the agreement admittedly executed between them. The learned counsel made specific reference to Article 5 of the Master Service Agreement dated 24.07.2017, which provides for method of Price and Payment terms. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate dated 27.01.2015, but at page 858, the work completion certificate is dated 23.02.2015. 28. These are three of the examples referred to by the learned counsel for the respondent out of so many invoices dated 01.03.2017 as relied upon by the petitioner. 29. At page 803 of Annexure VI is the letter dated 21.03.2017 sent by the petitioner to the respondent which is much prior to the issuance of demand notice stating therein that the petitioner received a letter dated 16.03.2017 from the respondent by speed post containing 15 invoices relating to Bharti Kolkata Project. It was alleged that these invoices have been returned without assigning any reason, therefore, those invoices were being sent back to the outsourcing commercial department of the respondent. 30. Before that the petitioner had sent another letter dated 07.03.2017 as at page 804. This is in reference to the email dated 09.10.2015 i.e. after a gap of about 1 years after 15 invoices amounting to ₹ 22,32,036/- were returned with the remark extra site for MS2 was claimed . It is stated in this letter by the petitioner that vide negotiation minutes dated 15.06.2015, the management of the respondent de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. Learned counsel for the petitioner, however, submitted that the notice to the respondent has been sent in Form No.3 and sending of all the invoices was not required. It was contended that the petitioner s case is supported by the ledger account, copy of which was sent to the respondent also, I am unable to agree with this contention of the learned counsel because the basis of the claim of the petitioner is the invoices and not the entries in the ledger account. It is well settled principle of law that entries in the ledger account of the petitioner cannot fasten liability on the respondent. The basic documents were only the invoices for establishing the claim of debt and to support the contention that there was no scope of a possible dispute. At serial No.7 of Form No.3, Operational Creditor is required to attach the list of documents in order to prove the existence of operational debt and the amount in default. For these reasons, I would hold that the demand notice was not valid. 37. In view of the above, I find that the instant petition deserves to be rejected. The petition, therefore, is rejected. The petition, therefore, is rejected. Copy of this order be communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
