TMI Blog2020 (1) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 26-11-2019 - Justice Jarat Kumar Jain Member (Judicial), Mr. Balvinder Singh Member (Technical) And Dr.Ashok Kumar Mishra Member (Technical) For the Appellant : Mr. Swapnil Gupta and Ms. Shivambika Sinha, Advocates. For the Respondent : None JUDGMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER The Appellant SEITZ GmbH has filed an appeal under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 (for short, the I B Code ) for setting aside the impugned order 03.07.2019 passed by the Ld. Adjudicating Authority in CP(IB) No.293 (ND)/2018 by which Appellant s Application was dismissed. 2. The Appellant/Operational Creditor pleaded that the Respondent/Corporate Debtor has been regularly placing orders for surface acting industrial detergents for the dry-cleaning industry of various specifications with the Appellant. The Appellant supplied which were accepted by the Respondent without any demur or protest. However, the Respondent failed to make payments towards the invoices raised by the Appellant between the period July 2014 to November, 2017 an am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and the relationship between Appellant and Respondent as apparent from the Confidentiality Agreement dated 20.03.2012 and the Board Resolution dated 02.08.2012 led to the incorporation of Seitz India Pvt. Ltd., (hereinafter Seitz India ). And thus, Seitz India was incorporated with a 50% equal shareholding of Mr.Sandeep Sood and Mr.Alexander Seitz vide shareholders agreement dated 28.03.2013. It is important to state here that Seitz India is nothing but a partnership between Mr.Sandeep Sood and Mr.Alexander Seitz. For the purpose of clarity, it is important to take note of the parties to the dispute. Seitz GmBH is incorporated under the laws of Germany and its shareholders/partners are Mr.Alexander Seitz and Alexander Runge. Simtech is a Company incorporated under the Companies Act, 1956 and Mr.Sandeep Sood is the Director and shareholder of Simtech. Mr. Sandeep Sood is also the proprietor of Lotus Imports. Mr. Sandeep Sood and Mr.Alexander Seitz are also the directors of Seitz India. That in order to grow and increase the business, assets and goodwill of Seitz India, Mr. Alexander Seitz requested Mr. Sandeep Sood to transfer and bring all its customers and sales business wort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of loan to Mr.Sandeep Sood; (ii) ₹ 6,00,00,000/- as consideration for transfer of all its customers and sales business from Simtech to Seitz India; and (iii) ₹ 1,42,26,064.92 due and payable by Seitz India on account of goods supplied by Simtech, which has not happened at the behest of Seitz GmBH and Mr.Alexandar Seitz. It is reiterated that the accounts have to be settled interse between all the relevant stakeholders i.e (i) Simtech; (ii) Mr.Sandeep Sood; (iii) Seitz India; (iv) Seitz GmBH; and (v) Mr.Alexander Seitz. That in order to harass Simtech and to restrain Simtech and Mr.Sandeep Sood from demanding their legitimate dues, Seitz GmBH issued a demand notice dated 31.01.2018 under the Code claiming an alleged amount of Euro 229,020.48 from Simtech. The said Demand Notice has been duly replied by Simtech vide reply dated 12.02.2018 explaining that no outstanding amount is due and has elaborately explained the disputes which exists between the parties/companies as stated supra. 5. In this connection, the Respondent has also filed a Suit bearing C.S No.679/2018 title Simran Technologies Private Limited vs. Seitz Cleaning Solutions Private Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority. 8. Section 5(6) of IBC, 2016 defines Dispute which is inclusive and has wider perception in line with the decision of Hon ble Supreme Court in the case of Mobilox Innovative Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd in Civil Appeal No.9405 of 2017 vide order dated 21.09.2017, inter alia that: Therefore, all that the Adjudicating Authority is to see at this stage is whether there is plausible contention which required further investigation and that the dispute is not a patently feeble 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 the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypoth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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