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2018 (12) TMI 1698

..... spurious defence. Most of the disputes raised by the Corporate Debtor during the hearing of the petition were not raised by the Corporate Debtor in the reply to demand notice served before filing of the petition and have been raised belatedly at the time of hearing - Further, the Corporate Debtor has stated its willingness to settle the accounts in case of discrepancies of accounts. Also, no documents have been provided regarding the debit note raised upon the Operational Creditor for adjustment of ₹ 19,97,563/-. The fact that bank certificate is not annexed in compliance of Section 9 (3)(c) of IBC has been held to be directory by the Hon’ble Supreme Court in the matter of MACQUARIE BANK LIMITED VERSUS SHILPI CABLE TECHNOLOGIES .....

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..... ,704/- and the ledger account states that a payment of ₹ 30,70,000/- has been paid and an amount of ₹ 20,58,704/- is pending. The Operational Creditor has stated that the notice dated 9.3.2017 was received by the Corporate Debtor on 20.3.2017. 3. The Corporate Debtor has replied to the abovementioned Section 8 demand notice by a letter dated 20.3.2017. The reply states that the notice sent is not tenable and the amount of ₹ 20,58,704/- is not owed by the Corporate Debtor. The reply further states that a sum of ₹ 1,00,000/- is owed and a cheque, bearing cheque number 952160 issued by State Bank of India for that amount was enclosed therewith to settle the account. The reply further stated that in case the cheque is en .....

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..... ce itself is vague, void and defective and a petition based on such notice is liable to be dismissed. c) The petition is not maintainable for want of certificate from the creditor s financial institution. d) There are discrepancies between the unpaid amount mentioned in S. 8 notice (₹ 20,58,704), Petition (₹ 31,70,404/) and the invoices annexed (₹ 51,28,704/-). e) According to the accounts of the Corporate Debtor, it is liable to pay only ₹ 1,00,000/- to the Operational Creditor. And the Corporate Debtor enclosed a cheque for the same amount to the reply of demand notice sent by the Operational Creditor. f) The Corporate debtor purchased certain materials from a group concern of the Operational Creditor called Metec .....

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..... o be inspected. This is a triable issue which is beyond the scope and jurisdiction of the Tribunal. j) It is well established that when the claim is disputed by the Corporate Debtor, the question of default does not arise. k) The Operational Creditor has not annexed the statement for the financial year ending 31.3.2018 which shows outstanding of ₹ 1,00,000/-. 6. In its Affidavit-in-Reply, the Corporate Debtor has further stated the Corporate Debtor is willing to pay as per its books for which the Corporate Debtor requested for a joint meeting with the Operational Creditor. 7. The Operational Creditor has filed an Affidavit-in-Rejoinder dated 5.11.2018 stating, inter-alia, that: a) It is correct that the invoice is showing the figure o .....

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..... Operational Creditor of the poor quality of goods and raised a debit note for an amount of ₹ 19,97,563/-. e) The said debit note is not annexed to the reply (being reply dated 20.3.2017) to the Section 8 demand notice. Further, no proof to show that such debit note was issued to the Operational Creditor. 8. With respect to the discrepancies in the amounts in demand notice, petition and invoice, the Operational Creditor stated that the same is covered by the decision of Hon ble NCLAT and the Insolvency Resolution Professional has to look at it. 9. The Operational Creditor has annexed the Section 8 demand notice sent to Corporate Debtor, reply of the Corporate Debtor to the demand notice and further communication by the Operational Cred .....

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..... r, 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. 11. The dispute raised by the Corporate Debtor is spurious defence. Most of the disputes raised by the Corporate Debtor during the hearing of the petition were not raised by the Corporate Debtor in the reply to S. 8 demand notice served before filing of the petition and have been raised belatedly at the time of hearing. Further, the Corporate Debtor has stated its willingness to settle the accounts i .....

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..... ssession of the corporate debtor. II. That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. III. That the provisions of sub-section (1) of Section 14 of IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. IV. That the order of moratorium shall have effect from 14.12.2018 till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of IBC or passes an order for liquidation of corporate debtor under section 33 of IBC, as the case may be. V. That the public an .....

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