TMI Blog2019 (6) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... t claimed by the Operational Creditor against the Corporate Debtor - there exist dispute about the amount of debt, hence, this application is not maintainable in view of the provision of Section 9(5)(II)(d) of I B Code. However it has to be seen whether the Corporate Debtor by way of reply of demand notice under Section 8 of Insolvency and Bankruptcy Code, 2016 has brought this fact to the notice of the Corporate Debtor. The Corporate Debtor did not say anything in his affidavit-in-reply that he has sent notice etc. No copy of reply is produced on record. But the Operational Creditor himself admitted this fact stating that on 13.04.2018, he received reply from the Corporate Debtor raising frivolous and baseless dispute (point 8 Part V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2014 to 31.05.2016 (details are given at page Nos. 25 to 29 at Annexure I- Exihibit B), the Operational Creditor supplied the Corporate Debtor Industrial Oxygen Cylinders, Carbon dioxide Cylinders and LPG Cylinders. 2.2 The Operational Creditor states that amount of ₹ 1,10,23,431/- (Rupees One Crore Ten Lakh Twenty Three Thousand Four Hundred and Thirty One Only) was due and payable by the Corporate Debtor. This amount carries an interest at the rate of 12% per annum. Hence, the Corporate Debtor is liable to pay total sum of ₹ 1,45,74,133/- (Rupees One Crore Forty Five Lakh Seventy Four Thousand One Hunderd and Thirty Three Only). 2.3 In spite of repeated demand, the Corporate Debtor failed and ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf. 4. The Corporate Debtor further contended that the Operational Creditor filed false FIRs against the Corporate Debtor. That FIR is challenged by them by the Writ Petition bearing No. C.R.R. No. 130 of 2017. The FIR is outcome of disputes pending in between them about amount claimed. It is his say that complicated questions of facts and law are involved which require adjudication by way of Civil Suit. This cannot be resolved in this proceeding which is of summary nature. Since there is dispute about the amount claimed, this application is not maintainable. It may be rejected. 5. The Operational Creditor filed rejoinder. In para (iii), he contended that the Corporate Debtor's claim about tax invoices is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoogly, West Bengal, Pin Code-712222. They, conjointly, propagandized about the accused company's success by leap bounds and expressed their profound desire to do some gigantic business with informant's proprietorship concern. Thereafter, both the noted above accused persons Nos. 2 3 invited Informant and Informant's son to have some dinner at Great Eastern Hotel which, Informant, turned down but due to their continuous nagging, Informant, himself and his son ultimately bow down before their invitations and accordingly it was decided to have the said dinner on the very next night at about 8:00 P.M. Soon, thereafter, business talks commenced between the Informant his son with the accused persons. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or adjudication. The Operational Creditor did not disclose these facts in his application filed under Section 9 of Insolvency and Bankruptcy Code, 2016. But the Operational Creditor claimed from the Corporate Debtor exact same amount pertained to same period for which he had made allegations of cheating etc. This itself shows that there is a serious dispute pending about the amount claimed by the Operational Creditor against the Corporate Debtor. 9. Apart from above it is the say of the Corporate Debtor that Operational Creditor claimed holding charges'' though they were not agreed upon. For this, the Operational Creditor's explaination is that holding charges means rental charges but if the invoices are peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 mere 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. 10. If the facts in this case are considered in the light of above ratio, it has to be held that there exist dispute about the amount of debt, hence, this application is not maintainable in view of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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