TMI Blog2019 (2) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Act, 1956 and it is enough for the Corporate Debtor to establish that there is plausible dispute in existence as between the parties. As rightly pointed out by learned counsel for the Corporate Debtor, it is required for the applicant/Operational Creditor to specify as to the date from which the debt fell due in Part-IV of the application which is not disclosed. In view of the existence of dispute, Form-5 and part IV contained therein prescribed as the format of application to be completed and filed giving all the particulars being devoid of the same, as well as the above referred to decision of Hon’ble NCLAT, this Tribunal is of the view that the petition is to be dismissed, however, without cost. - IB No. 710 (ND)/2018 And TA No. 06/2018 - - - Dated:- 25-1-2019 - SHRI R. VARADHARAJAN, MEMBER (JUDICIAL) For The Petitioner (s) : PRACIII JOTIRI. ADV. For The Respondent (s) : AVNEIISII GAPTU, ADV. ORDER 1. This petition has been filed by an Operational Creditor against the Corporate Debtor under the provisions of Section 9 of the Insolvency and Bankruptcy Code (IBC), 2016 based on the claim by way of an operational debt for a sum of ₹ 19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Tribunal to the Corporate Debtor, a reply has been filed by the Corporate Debtor, denying the claim on the grounds that the agreement dated 26.12.2017 as entered into between the parties is per se null and void document and in the circumstances, it is not enforceable in law. 6. In addition, it is also pointed out that the agreement as entered into between the parties was never acted upon. It is also contended in the reply that the notice of demand under Section 8 of IBC, 2016 was never served upon the Corporate Debtor in accordance with the Insolvency and Bankruptcy (Application to Adjudicating Authority) hereinafter for sake of brevity referred to as IBBI (AAA) Rules, 2016. 7. There is no default, it is contended on the part of the Corporate Debtor in the payment of an operational debt as alleged by the Operational Creditor in relation to service of Section 8 notice. It is further observed in the reply that courier service is not envisaged as a mode of service under the provisions of IBC, 2016 read with Rule 5 of IBBI (AAA) Rules, 2016 and that the copy of proof of receipt, which has been annexed is only a sham and a manipulated document. It is also pointed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances, it is represented by the Operational Creditor that in relation to Section 8 notice, service is completed and despite receipt of said notice, reply has not been received as mentioned above in the petition. 11. The Corporate Debtor it is averred on the part of the petitioner has not chosen to reply to the same. In relation to the denial of e-mail service of Section 8 notice, it is averred in the rejoinder that the said e-mail ID to which Section 8 notice was issued to the Corporate Debtor by the counsel of the Operational Creditor is as reflected in the master data of the Corporate Debtor in the MCA Website and hence the Corporate Debtor cannot deny or refuse to acknowledge the e-mail received by it and the e-mail ID is used for financial purposes only and that the ground raised in relation to non receipt of Section 8 notice are all false and based on technical grounds with a view to escape from the clutches of law. In relation to existence of the operational debt it is averred in the rejoinder that execution of agreement dated 26.12.2017 has been admitted and as well as the claim arising thereunder cannot be denied by the Corporate Debtor in relation to demand of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid as compensation and that the commission of 10 per cent on the net sales amount invoiced by the Corporate Debtor to the department shall be paid. Learned counsel for the Operational Creditor also pointed out to the application of the company for the distribution of products and in relation to quality as well as to comply with the regulatory approval. During the course of submissions, learned counsel for the Operational Creditor also points out to Section 8 notice and its service through e-mail ID:- finance@tijaria-pipes.com and further a courier receipt in relation to dispatch of Section 8 notice to the Corporate Debtor and the dispatch proof and tracking report issued by the courier, namely, R-World Express Pvt. Ltd. is annexed at Page No. 57-58 of the typed set of the application. 14. A copy of the supply order to the Corporate Debtor as received based allegedly on the efforts of the Operational Creditor by Rural Water Supply and Sanitation Department of Government of Telangana is annexed as Annexure C . It is also pointed out that this has given rise to the demand of commission as per the agreement dated 26.12.2017 to the Operational Creditor and that the product as sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances the Operational Creditor cannot take a plea that supply were made behind the back and that he is un-aware of the bills which had been raised by the Corporate Debtor and for which payment is required to be received. Learned counsel for the Corporate Debtor also points out to the application as filed for initiating CIRP as contained under Part-IV of the application as prescribed under the AAA Rules, 2016, wherein it is pointed out that the petitioner/Operational Creditor has failed to give details of transaction on account of which debts fell due as well as the date from which such debt fell due. 16. However, it is further submitted that in the application filed by the Operational Creditor, no such specific date has been given as to when the commission had become payable. The claim it is submitted is based on mere surmises as it is pointed out that in Part-IV of the application, it is stated that the commission payable to the Operational Creditor ought to have been the amount claimed of ₹ 14,98,700/- of which ₹ 80,000/- has been paid and their remains a balance of ₹ 14,18,700/-. It is also pointed out by learned counsel for the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain this petition. It is also pointed out by learned counsel for the Corporate Debtor that even though it is a family company but having a substantial turn over of more than ₹ 21 crores and that the disputed claim should not be considered as relevant to declare insolvency as against the Corporate Debtor. 18. We have carefully considered the submissions of the respective parties which are made in the pleadings as well as at the time of submissions by the learned counsel for the rival parties. From the agreement as entered into between both the parties, it is seen that the product which have been specified is PLP Duct Pipe of 40mm X 33mm and the said agreement and its execution is not denied by both the parties. 19. The contention of the Corporate Debtor is that no supply of PLP Duct Pipe products as specified in the agreement has been made to the Government of Telangana. However, the Operational Creditor wants this Tribunal to construe that PLB Duct Pipe of which supplies have been made is nothing but PLP HDPE Duct as reflected in the agreement and since it is evident from the documents that supplies have been effected based on the contract which have been awarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on behalf of the Corporate Debtor. If that were so, the date of having incurred the expenditure along with proof is required to be produced before this Tribunal which is not the case here. Further in relation to demand of commission, the Hon ble NCLAT in a recent decision rendered on 11.01.2019 in Company Appeal (AT) (Insolvency) No. 482/2018 in the matter of Sunil Kumar Rishi v. Debashis Chakravarty at paragraph-5 of the said decision has held as follows: - It is submitted that in view of such e-mail addressed by the respondent demanding commission from the tenderer enquiry was made. E-mail dated 5th May, 2017 was enclosed as Annexure- B , but in spite of the same, the Adjudicating Authority admitted the application under Section 9, without looking into the pre-existence dispute relating to such demand of commission and the question whether demand of commission was justified or not; cannot be decided by the Adjudicating Authority or by this Appellate Tribunal, we are of the opinion it was not a fit case for admission . In view of the existence of dispute, Form-5 and part IV contained therein prescribed as the format of application to be completed and filed giving al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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