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TMI Blog2018 (8) TMI 1618X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/Corporate Debtor in regard to deficiency in services even prior to the issuance of demand notice under Section 8(1) of the I&B Code by the Operational Creditor. 3. The issue raised in this appeal is that the agreement dated 01.10.2015 between Appellant - 'M/s Impex Services India Pvt. Ltd.' and 'M/s SSMP Industries Ltd.' does not relate to any transactions made between the Appellant and 'M/s DBA Enterprises LLP.' (Corporate Debtor) and the Adjudicating Authority erred in coming to the conclusion that there was 'an existence of dispute' between the Appellant/Operational Creditor and the Respondent/ Corporate Debtor. 4. The facts germane to the disposal of instant appeal may briefly be noticed. The case set up by the Appellant/ Operational Creditor before the Adjudicating Authority was that the Appellant/Operational Creditor, engaged in the business of Freight Forwarding, rendered services to the Respondent/Corporate Debtor for a period spanning about two years. However, from November, 2016 the Respondent/ Corporate Debtor defaulted in remitting the amounts under some invoices, though, the Appellant/ Operational Creditor discharged its part of the work to the satisfaction of Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under duty drawback and Rs. 4,26,277/- under VKUY, respectively. It was further stated that Respondent/ Corporate Debtor had been making a demand for compensation/ reimbursement for the negligence in service. It is further stated that in terms of e-mails dated 19.04.2016 and 22.04.2016 the Appellant/ Operational Creditor admitted its negligence but subsequently denied any responsibility. It was stated that correspondence in this regard had started on 18.04.2016 and e-mail dated 19.04.2016 could not be construed as an acknowledgement of debt by the Respondent/ Corporate Debtor. 6. On consideration of documents relied upon by the parties, the learned Adjudicating Authority was of the view that disputes existed inter-se the parties even prior to issuance of Demand Notice under Section 8 of I&B Code with respect to deficiency in services rendered. Resultantly, petition under Section 9 of I&B Code was rejected. 7. Learned counsel for the Appellant/ Operational Creditor submits that the Adjudicating Authority was bound to admit the petition as the invoices in question were raised by the Appellant/ Operational Creditor in regard to services rendered to the Respondent/ Corporate Debtor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the demand notice or receipt of reply from the Corporate Debtor not indicating existence of a pre-existing dispute or repayment of the unpaid operational debt. If the aforesaid conditions exist, the Operational Creditor may file an application under Section 9(2) of the I&B Code in the prescribed manner alongwith the requisite fee. A copy of the invoice demanding payment or demand notice delivered by the Operational Creditor to the Corporate Debtor has to be furnished with the application. This is clearly borne out by conjoint reading of Section 8 and 9 (1) of the I&B Code. The Hon'ble Apex Court while dealing with this aspect in "Macquarie Bank Limited Vs Shilpi Cable Technologies Ltd." in Civil Appeals No. 15135, 15481 and 15447 of 2017 decided on 15th December, 2017held that the requirement of an application filed under Section 9(2) of the I&B Code being accompanied by an invoice/ demand notice is a mandatory condition precedent to the filing of the application. 10. While dealing with triggering of Corporate Insolvency Resolution Process at the instance of an Operational Creditor in "Mobilox Innovations Private Limited V/s. Kirusa Software Private Limited", Civil Appeal No.94 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-mails relied upon by the parties are addressed to the sister company of the Respondent/Corporate Debtor. This is besides the fact that the agreement dated 01.10.2015 too was executed between the Appellant/ Operational Creditor and 'M/s SSMP Industries Pvt. Ltd.'. Same conclusion can be drawn from the debit notes dated 31.08.2017 forming Annexure F-1 at page 28-29 of the reply filed by Respondent/ Corporate Debtor. This conclusion is further reinforced from the email dated 19.04.2017 from the Appellant/Operational Creditor. Admittedly, there was no separate agreement executed between the Appellant/ Operational Creditor and the Respondent/Corporate Debtor qua the shipment of the Respondent Company. It emerges that non-receipt of export incentives by the Respondent/Corporate Debtor in terms of agreement dated 01.10.2015 governing there inter-se relations in respect of both entities and errors in the shipping bills of the Appellant/Operational Creditor led to a dispute in regard to performance of services which was raised by 'M/s SSMP Pvt. Ltd.' in terms of its e-mail dated 18.04.2016 forming Annexure-B at page 126 of the appeal. The Appellant/ Operational Creditor appears to have as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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