TMI Blog2018 (8) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Petitioner : Ms. Ishita Chakrabarti, Advocate, Mr. Rishav Banerjee, Advocate, Mr. Zeeshan Haque, Advocate For The Respondent : Dr. Anurag Kuma Agarwal Advocate And Mr. Tushar Parashar, Advocate ORDER 1. This is an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules, 2016. The provocation for filing this application according to the applicant in the capacity of Operational Creditor (OC) against the Corporate Debtor (CD) is stated to be as follows: i. That based on the purchase order dated 29.3.2010 and 19.5.2010 bearing NO.SCS/RG/GKS/2K10/335 and No.SCS/VSM/PKS/2KX/P-539/16927 respectively for supply of primary and secondary Vibrating Screen, Ring Granulator type Crusher and Vibrating Grizzly (Screen) placed by CD supplies were effected by the OC to the complete satisfaction of the CD and that invoices were raised between December, 2010 to 2011, as detailed in Part-IV of the application. ii. At the time of raising purchase orders and awaiting contract from CD to OC in relation to the terms of payment for the supply of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction of supply of goods to the CD by the OC. vii. Subsequent to the receipt of notice of application, CD has duly entered its appearance in the above application to defend its cause and towards the same a detailed reply has been filed by the CD and the following grounds are being projected by the CD to stave of the claim of the OC, namely: (i) That the claim made by the OC prima facie is barred by limitation as all the invoices pertain to the period more than 3 years i.e. of the year 2010-11 prior to filing of this petition even according to the admission of the OC. (ii) The next plea which is made by the CD is that material facts have not been disclosed in relation to the claim as made by the OC. In this regard, it is contended by the CD that totally 3 purchase orders were placed and not two as claimed and as averred by the OC and for whatever reasons known to the OC while purchase orders dated 29.03.2010 and 19.05.2010 has been disclosed, the purchase order dated 13.10.2010 has not been disclosed and which it is stated has also been annexed as Annexure 2 of the reply typed set. In this regard, it is also contended by the CD that complete and true statement of accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomers of CD all of which the OC was put on notice and also being aware however, has failed to disclose all the above facts before this Tribunal at the time of filing this application. Taking into consideration all the above, this petition it is contended by the CD is liable to be dismissed. 3. In response to the reply a rejoinder has been filed by the OC denying the contentions or submissions made in the reply affidavit filed by the CD and it is claimed that the CD has not pointed out any dispute as pre-existing prior to filing this application. In this connection, it is also further pointed out by the OC that to the notice issued by the OC on 5.12.2016 under section 434(1)(a) of the erstwhile Companies Act, 1956 no reply was received to the notice issued under Section 8 IBC, 2016 being the notice of demand and in the circumstances it should be considered that whatever defence which the CD is trying to put up now is only a sham defence and is an after thought raised belatedly with a view to extricate itself from the CIRP process. It is also stated in relation to the pre-existing dispute that at no point of time the CD has complained about non/late deliveries as alleged to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of limitation Ld, Counsel has relied upon the decision of Hon'ble NCLAT as passed in Speculum Plast (P.) Ltd. v. PTC Techno (P.) Ltd. Pvt. Ltd. In Company Appeal (AT) (Insolvency) No. 47/2007 and pointed out that even though the judgement is under appeal in the Hon'ble Supreme Court in Civil Appeal No.23988 of 2017, it is yet to be disposed off and in the absence of any stay being granted as of date, the decision of Hon'ble NCLAT holds the field. Thus, taking into consideration these decisions, it is contended by Ld. Counsel for the OC that the petition as filed by the OC is sustainable and that the defence taken by the CD cannot be sustained either on facts or in law. 5. In opposition, Ld. Counsel for the CD points out to paragraph 40 of the judgement of Hon'ble Supreme Court in Mobilox Innovations (P.) Ltd. (supra) as cited above and stresses that the dispute which is raised by the CD is not patently unviable legal argument or fact supported by evidence and that it is substantial. In the circumstances, this Tribunal should reject the petition/application. Further, Ld. Counsel for the CD relied upon the decision of the Hon'ble NCLAT rendered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made the OC to hold its hand from prosecuting the claim against the CD particularly in the Civil Court. The proceeding before the Learned Metropolitan Magistrate, Calcutta it is to be noted is for the purpose to make the accused, namely the Corporate Debtor herein accountable for the act of dishonor of cheque, being an offence under the provisions of the Negotiable Instruments Act, 1881 (as amended) and cannot be equated to a civil proceeding. It is also trite law that a judgement in a criminal case cannot be received in a civil action to establish the truth of the facts upon which it is rendered. Thus, we are not convinced that the criminal action initiated by the OC in the year 2012 and the proceedings still having not attained finality can be considered as an explanation for the delay. However, in view of the consistent stand of the Hon'ble NCLAT in relation to the issue of limitation under IBC, 2016, we do not want to delve on this issue any further, until otherwise some light is thrown by the Hon'ble Supreme Court on this issue of which it is seized of in the meanwhile in view of the decision of Hon'ble NCLAT give the benefit to the applicant herein on this iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 8. Even though OC denies the claim of the CD that no debit note has been served in the year 2015 as in relation to the address to which it had been given OC has sought to portray a picture that it is in any case not aware of any office in Baroda now Vadodhara to which the debit note is alleged to have been dispatched and claimed to have been served by the CD. In rebuttal of the same the CD has produced screen shot of website of the OC wherein the address to which the CD alleges the debit notes were sent is also figuring as one of the offices of the OC. Further extract of the dispatch register for 23/7/2015 and speed post receipts have also been annexed in relation to dispatch of the debit notes. Hence, the receipt of debit notes in the year 2015 which is prior to the issue of the winding up notice under the provisions of the erstwhile Companies Act, 1956 upon CD clearly establishes that dispute between OC and CD is a pre-existing dispute. It is another matter that CD has not replied to the winding up notice issued under earlier dispensation or to the Section 8 notice under IBC, 2016. However, it will not detract the nature of the dispute as pre-existing prior to the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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