TMI Blog2020 (3) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted. Application admitted - moratorium declared. - Company Petition (IB) No. -1427/ND/2019 - - - Dated:- 21-1-2020 - Dr. Deepti Mukesh, Judicial Member And Hemant Kumar Sarangi, Technical Member Ms. Palak Rohmetra, Adv. for the Applicant. Jatin Kumar, Adv. for the Respondent. ORDER Sh. Hemant Kumar Sarangi, 1. The present application is filed under section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by M/s This Is It Designs Private Limited (for brevity 'Applicant'), through its authorized signatory Ms. Saheba Singh, authorizing her to file present application vide Board resolution dated 10.06.2016, with a prayer to initiate the Corporate Insolvency Resolution Process against (CIRP) against M/s Kayo Enterprises Pvt. Ltd. (for brevity 'Respondent'). 2. The Applicant, the Operational Creditor, is a company i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor did not clear the payment of the Forth Invoice, but the Applicant continued to provide their services and the same were regularly accepted by the Corporate Debtor. The Petitioner after completing the fifth stage work raised invoice No. 19-20/092 for the services availed by Corporate Debtor as per the terms and conditions for a total amount of ₹ 3,65,799 (Rupees Three Lakhs Sixty Five Thousand Seven Hundred Ninety Nine) and also raised bill for 28 site visits which were also conducted by the Applicant Company on the request of the Corporate Debtor for six months after acceptance of design agreement. Reimbursement of site visit expense as per terms and condition of Design Agreement i.e., Supervision beyond 6 months had been charged @10,000 per visit. Site visit reimbursement @₹ 10,000 per visit i.e., ₹ 2,80,000 (Rupees Two Lakhs Eighty Thousand) has also been unpaid by the Corporate Debtor. 6. In spite of various requests made and reminders sent by the Applicant, the Respondent did not reply. On failure to pay the outstanding dues by the Respondent, the Applicant sent a demand notice dated 30.04.2019, under section 8 of the Insolvency and Bankruptcy Code, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seal/stamp of the Corporate Debtor. 12. The Respondent further states that, in the present petition the Operational Creditor has raised a false and frivolous claim of ₹ 12,69,420/- (Rupees Twelve Lakhs Sixty Nine Thousand Four Hundred Twenty), for the debt against alleged two invoices dated 23.10.2018 08.04.2019. it is relevant to mention that the principal amount as per the invoices is ₹ 9,14,499/- (Rupees Nine Lakhs Fourteen Thousand Four Hundred Ninety Nine). It is also relevant to mention that the interest on the same is wrongly calculated @ 24% by the Applicant at his whims and fancies. It is also relevant to mention that an amount of ₹ 2,80,000/- (Rupees Two Lakhs Eighty Thousand), is claimed on the head of supervision charges @ ₹ 10,000/- per visit beyond six months. It is relevant to mention that there is no invoice of the same and the dates are just mentioned in the Legal Notice dated 30.04.2019 which is defective as per section 8 IBC. 13. The Applicant has filed its rejoinder, in which the Applicant states that, the Corporate Debtor in his reply nowhere has raised any dispute with respect to the services rendered by the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the said invoices. Once the debt is shown as due, it is for Respondent to prove that there are no outstanding dues to be paid to the Applicant. There has been much cloud in the submission of the Respondent. Therefore, without any specific details of material particulars or evidence the fact of existence of a dispute cannot be sustained. 17. In Innoventive Industries Ltd. v. ICICI Bank Ltd. the Hon'ble Supreme Court held that pre-existing dispute is the dispute raised before demand notice or invoices was received by the 'Corporate Debtor'. Any subsequent dispute raised while replying to the demand notice under section 8(1) cannot be taken into consideration to hold that there is a pre-existing dispute. 18. In Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. 2017 SCC On Line SC 1154, Hon'ble Supreme Court held: 40 . Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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