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2019 (12) TMI 127

..... tion for enabling the Corporate Debtor to pay the amount in demand? HELD THAT:- On a reference to all documents, there is a pre existent dispute as alleged by the Corporate Debtor in respect of the payment of the debt due to the Operational Creditor and therefore, this Application is liable to be rejected. Application rejected. - C.P.(IB) NO. 33 (KB) OF 2018 - 14-8-2019 - Jinan K.R., Judicial Member Ravi Asopa, Adv. for the Applicant. Vivek Basu, Adv. for the Respondent. ORDER Jinan K.R., This is an Application filed by M/s. Electro Pole Products Private Limited/Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code, 2016, read with Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules .....

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..... r a sum of ₹ 36,30,750/- (Rupees Thirty six lakh thirty thousand seven hundred fifty only) , after receiving clearance from the Corporate Debtor. The above said payments have been credited by the Banker of the Corporate Debtor. It is further alleged that the Banker of the Corporate Debtor has refused to honour the third Letter of Credit dated 21-07-2016 for a sum of ₹ 36,37,454/- (Rupees Thirty Six lakh thirty seven thousand four hundred fifty four only ) and therefore, the Operational Creditor has filed this Application for initiating the CIRP as against the Corporate Debtor. In order to substantiate the above said contentions, the Operational Creditor has produced correspondence exchanged in between the Bank and the Corporate .....

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..... the amount as demanded, only because of the breach of terms in the purchase order. According to the Corporate Debtor, they have forcibly withheld the dues due to the Operational Creditor for want of submission of the 'C Form related to the goods supplied to them as per the purchase order referred to in the Application. It further contends that there is no debt due or payable by the Corporate Debtor to the Applicant as there is serious disputes pertaining to the breach of terms in respect of delivery of goods to the Corporate Debtor. The Corporate Debtor has raised a counter claim against the Operational Creditor which cannot be decided in a proceeding of this nature. The Corporate Debtor admitted the issuing of purchase order and recei .....

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..... er the purchase order dated 04-05-2015 asking for the deposit of El Form though the Operational Creditor has agreed to submit the same but without having the Form 'C' issued and/or deposited with them it could not be possible to submit El Form to the Corporate Debtor and that El Form is ready and lying with the Operational Creditor and copy of which has been produced along with rejoinder as Annexure R-3. It further alleged that non submission of El Form has no connection with the payment of the entire dues under the purchase order dated 04-05-2015 and therefore, the dispute raised on the side of the Corporate Debtor is frivolous and raised without any bona fide to delay the payment legitimately due to the Operational Creditor. The d .....

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..... orate Debtor against the Letter of Credits of which the amount is to be credited. The Bank did not credit the amount in favour of the Operational creditor and thereafter, due date of the Letter of Credit has also expired. After expiry of the Letter of Credit, the Applicant demanded the amount from the Corporate Debtor. But the Corporate Debtor refused payment on the allegation of non sub mission of El Form. According to the Corporate Debtor, submission of El Form is a pre condition for due payment of the amount in demand and that Form being not submitted, the Corporate Debtor is not bound to pay the amount and therefore, according to the Ld. Counsel for the Corporate Debtor, no amount is due as demanded by the Operational Creditor and it is .....

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..... or and that copy of the El Form has already been communicated to the Corporate Debtor and number of communications have been produced along with the supplementary affidavit. A reference to that communication shows that it was issued on 05-08-2019 i.e. two days before the date of hearing of the Application. So, on the date of filing of this Application, dispute related to issuance of 'C Form by the Corporate Debtor and in return issue of El Form by the Operational Creditor was pending for consideration and the letters of correspondence as evidenced from the Annexure with the Application itself reveals that correspondence were exchanged in between the Operational Creditor and the Corporate Debtor as to non issuance of 'C Form as well .....

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..... 15 & 2015-2016, so that we will request Manipur Sales Tax department to accept your E-l and withdraw the demand notice. Further we will also request Manipur Sales Tax department to issue C form against your supply made in 2016-2017. Considering the gravity of the situation, we once again request you to handover the E-l form immediately failing which we will have no other option to recover the demand of Manipur Sales Tax department from your dues. Until then, we will not entertain any of your claim in this regard.' 8. So, on a reference to all these documents, there is a pre existent dispute as alleged by the Corporate Debtor in respect of the payment of the debt due to the Operational Creditor and therefore, this Application is liab .....

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