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2019 (12) TMI 127

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..... 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, 2016 for initiating Corporate Insolvency Resolution process ( in short CIRP) as against the against M/s. Indo Nabin Projects Limited/Corporate Debtor. The Operational Creditor is engaged in supply of MS Steel Tubular Poles. As per Exhibit 'B', purchase order, the Corporate Debtor placed an order for supply of Steel Tubular Poles upon the terms and conditions as provided in the Annexure 'B', pur .....

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..... akh 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 Debtor which include Bill of Exchange- Annexure 'D', 'E', third Letter of Credit - Annexure 'G'. The correspondence evidencing the payment exchanged in between the Operational Creditor and the Corporate Debtor are also produced and marked as Exhibit 'H', I, 'J', 'K'. Upon the above said contentions, the Operational Creditor contends that they are entitled to claim, .....

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..... pplicant 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 receipt of the goods as per the invoices referred to in the Application. According to the Corporate Debtor, as per Clause 7, the Operational Creditor failed in issuing 'El' Form for supplies made to the Respondent. It further contends that as per Clause 7 in the purchase order, upon submission of 'C Forms by the Corporate Debtor to the Operational Creditor, the Operational Creditor has to issue the corres .....

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..... 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 dispute being non sustainable under the law, the Operational Creditor prays for admission of the Application. 3. This case is taken up on 07-08-2019. When it was taken up in the morning, the Ld. Counsel for the Operational Creditor was present. However, when the Application was taken up for hearing at about 1 p.m., nobody turned up on the side of the Operational Creditor. Therefore, we heard the Ld. Counsel appea .....

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..... rding 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 a pre existent dispute existing before the issuance of the demand notice. In order to substantiate his argument, he referred to Clause 7 in the Annexure 'B' purchase order: Clause 7. "Sales Tax Concessional Sales Tax as applicable against 'C form will be paid extra. You will submit El Form immediately after receipt of 'C form. Way bill will be issued on confirmation of despatch/inspection o .....

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..... 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 as 'El' Form. One among the letter referred to at page 130 is good to read. The extract of the letter reads as follows : 'From : "P Sadani", ps(g)indonabin.in Date Thursday, February 9, 2017 1:33 PM To : "A AGARWAL [VP SALES-ELECTRO POLES]" Subject : Re.: MOST URGENT RELEASE OF PAYMENT VIDE ILC OVER DUE FOR SUPPLY OF ST POLES MANIPUR Dear Sir, We are in receipt of your mail dated .....

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