TMI Blog2020 (2) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ema Member (Judicial) And Kanthi Narahari Member (Technical) For the Appellant : Appeared but did not give appearance For the Respondent : Mr. Ajay Kohli, Advocate JUDGMENT KANTHI NARAHARI, MEMBER(TECHNICAL) The appeal is arising out of the impugned order dated 28th May, 2019 passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench), Chennai admitting the application filed by the 2nd Respondent herein under Section 9 read with Rule-6 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC ). 2. Learned Counsel for the Appellant challenged the said order on the ground that the application filed by the 2nd Respondent herein is not maintainable in view of the reason that there is existence of dispute prior to issuance of Demand Notice by the 2nd Respondent. 3. Learned Counsel for the Respondent submitted that the 2nd Respondent supplied and delivered the materials in pursuance to the Purchase Orders made by the 3rd Respondent and the 3rd Respondent had defaulted in making payments. 4. Both the Counsel put forth their arguments extensively. 5. Heard learned Counsel appearing for the respective parties. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... announcement of the Corporate Insolvency Resolution Process shall be made immediately as specified under Section 13 of the Code. (VI) That this Bench hereby appoints Dr. L. Natarajan, as Interim Resolution Professional (Registration No. IBBI/IPA-001/IP-P00614/2017-18/11108, having office at No. 21, Jambulingam Street, Nungambakkam, Chennai 600 034 E-Mail: natrajan1@yahoo.com with his consent to carry the functions as mentioned under The Insolvency Bankruptcy Code. (Emphasis Supplied) 6. From the perusal of the impugned order, learned Adjudicating Authority relied upon the Purchase Orders and a Memorandum of Understanding (in short MOU ) entered between the Operational Creditor and the Corporate Debtor on 08.09.2018. From the perusal of the Form-V filed by the Operational Creditor, i.e., 2nd Respondent herein a claim of an amount of ₹ 41,94,575/- along with interest of ₹ 3,97,742/- was made. The transactions as per the Form is that Operational Creditor had supplied 64 nos. of Roof Top Units (in short RTU ) vide Purchase Order dated 06.09.2018 and additional materials were supplied vide another Purchase Order dated 08.09.2018. Pursuance to the Purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Operational Creditor yet to complete supply all 65 RTU as ordered by the Corporate Debtor, although the Corporate Debtor had been diligently making payments to the Operational Creditor for the work done. 10. Further from the perusal of e-mail dated 31.10.2018 from the Corporate Debtor to the Operational Creditor wherefrom it is evident that From: AM CLEAN AIR ENGINEERING PVT. LTD. amcaesales@gmail.com To S. Balaji balaji@eta-engg.com, Radhakrishnan GN radakrishnangan@etc.engg.com Raman G ramang@eta-engg.com Date: Wed. 31 Oct 2018 21:15 Subject: Re: Deficient materials and balance payment ___ Dear Sir, From the KIA site, we received an information that Medium-filters of 440 nos. and some fan meshes (11 Nos.) are not supplied from your side as per the requirement for all the RTU s till date. Also the extra materials (i.e.) extra aluminium profiles, Fittings, Scraps, Spider for lifting RTU s and extra Control Panel which belongs to us have not been returned to us so far. We have not received the 100% materials so far and they are not paying us due to the delay in the delivery of these materials. They are also insisting us that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not accept the contents of your mail . One WuHyun Tech India Private Limited to whom Purchase Orders were placed by the Corporate Debtor to supply the material to the said WuHyun Tech India Private Limited, the WuHyun Tech India Private Limited in their letter dated 06.11.2018 addressed to the Corporate Debtor submitted a claim for delay in delivery and quality defect. In paragraph-2 of the said letter, it is clearly stated that the RTU which provided by the Corporate Debtor created leaking problem, the Corporate Debtor s staff arrived on 28.09.2018 but did not bring any solution or measure. B. Provision of Law The law relating to filing of application by Operational Creditor: Provision under Section 8 of the IBC which reads as follows; 8. Insolvency resolution by operational creditor (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The Corporate Debtor shall, within a period of ten days of the receipt of the demand notice or copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be and observed 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute [Section 8(2)(a)]. What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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