TMI Blog2018 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... harma, proprietor Shri Babulal Jain (hereinafter referred to as petitioner ) has filed the present petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as the Code ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred as the Rules ). The corporate debtor (hereinafter referred to as respondent ) is Life Essential Personal Care Pvt. Ltd. incorporated on 07.11.2013 with identification number U24100HR2013PTC050853. As per the Master Data at Annexure-A of the petition, the authorised and paid up share capital is ₹ 6,00,00,000/-. The registered office of the respondent is at 709, Sector 23, Village Carterpuri, Gurgaon-122001. Therefore, the matter falls within the territorial jurisdiction of this Tribunal. 2. It is stated in the petition that the respondent purchased pharmaceutical products on a regular basis from time to time. It is stated in Part IV of Form 5 that the total amount of goods purchased by the respondent is ₹120502 and that the respondent at the relevant point of time received the goods stated in the respective invoice and never raised any disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹2000/- and ₹30,000/- dated 15.12.2016 ostensibly towards product approval and that these entries were unilateral, without any basis or justification, since no new product was manufactured by the petitioner for the respondent requiring any new licence or approval and further, no proof regarding payment by the petitioner to any competent authority has been furnished. It is submitted that the principal amount claimed is ₹100118/- and if the above disputed amount of ₹32,000/- is excluded, the present petition would not be maintainable before the Tribunal. It is submitted that as per the audited books of account of the respondent, an amount of ₹45313/- only is outstanding on account of goods purchased and that for reasons best known to the petitioner, they have furnished the ledger account w.e.f. from 01.04.2016 and the opening balance as per the petitioner as on 01.04.2016 is ₹3,10,827/- (Dr.), whereas as per the audited ledger account maintained by the respondent, the opening balance is ₹2,65,197/- which is a difference of ₹45,630/-. It is stated that raw material in the form of packaging and containers of the value of ₹4.5 lacs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by the respondent were not justified. It is also argued that as per Section 5(6) of the Code, dispute can be said to have arisen only where there is a suit or arbitration proceedings. 6. We have considered the arguments of the learned counsels for the petitioner and respondent and have also perused the records. The present petition is filed under Section 9 of the Code. As discussed above, the petitioner states that the respondent has purchased pharmaceutical products from the petitioner, for which invoices were raised by the petitioner on the respondent from time to time and that the respondent has on the relevant point of time received the goods stated in the respective invoices, which have been retained by the respondent and never returned and that the total amount of goods purchased by the respondent under the aforesaid invoices is ₹120502/- and an amount of ₹100118 remains outstanding due and payable by the respondent to the petitioner till date (Part IV of Form 5). The details of the invoices have been furnished in Annexure-B (colly) and includes two journal vouchers dated 15.12.2016 for ₹2000/- and ₹30000/-. The amounts are stated to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent, the opening balance as on 01.04.2016 is ₹2,65,197/-, which is a difference of ₹45,630. The learned counsel for the petitioner has not furnished any explanation for the difference in the balances and has also not clarified whether the ledger account filed with the petition is from audited accounts. In view of these facts, the difference of ₹45,630/- between the opening balances as on 01.04.2016 remains unexplained by the petitioner. The respondent has also pointed out that as per the ledger balance as on 13.01.2017 maintained by the respondent, an amount of ₹1,62,869 was outstanding which was paid to the petitioner on 13.01.2017 and the balance in the account became NIL. Reference is also made in this context to e-mail dated 13.01.2017 (Annexure R-3 vide diary No.1301 dated 25.04.2018) by which the petitioner was informed that the ledger balance of ₹1,62,869 has been cleared. The learned counsel for the petitioner has not rebutted the contentions and details furnished by the respondent. The respondent s contention is therefore, that only purchases made after 13.01.2017 totalling to ₹45,313/- remain to be paid. As discussed above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be restricted only to suit or arbitration proceedings. With regard to a similar provision in Section 8(2)(a) of the Code, the Hon ble Supreme Court of India in Mobilox Innovations Private Limited versus Kirusa Software Private Limited (2018) 1 SCC 353 (para No. 29) has held that it is enough that dispute exists between the parties and pendency of suit or arbitration proceedings is not necessary. The Hon ble Supreme Court of India also held in the above case (para 40) that the Adjudicating Authority is to see whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It was held that the court does not need to be satisfied that the defence is likely to succeed. It was held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the application. In the present case, the discussion made in the preceding paragraphs clearly shows that there is dispute existing in fact and it is not spurious, hypothetical or illusory. Therefore, the petition is to be rejected under Section 9(5)(i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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