TMI Blog2020 (5) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority, which is the underlying rationale for prior issuance of demand notice under section 8 of the Insolvency Bankruptcy Code, 2016 - Defences of the Corporate Debtor are thus tenuous and vacillating. The Corporate Debtor can't hold ground on loose and shifting sands. Hence, the defence of dispute raised by the Respondent/Corporate Debtor is lame and without any forceful and pivotal foundation; which in the contextual backdrop can at best be categorised as moonshine defence. Thus, the belatedly raised dispute without establishing nexus and relevance cannot be termed as genuine dispute - this Tribunal is inclined to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor as envisaged under the provisions of IBC, 2016. Time limitation - HELD THAT:- This Tribunal perused all the relevant papers and found them to be in order. The Registered Office of the Corporate Debtor is situated in Jaipur and therefore this Tribunal has jurisdiction to entertain and try this Application. The matter is also within the purview of Law of Limitation. Application admitted - moratorium declared. - Company Petition No. (IB)-54/9/JPR/2018 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of the said job-work. It emerges from the narrative that a prior business relationship existed between the parties, though it may not have been regular or frequent. 5. The Applicant has further submitted that it carried out job-work for the Corporate Debtor dated 14.11.2015 amounting to ₹ 576/-, dated 03.12.2015 amounting to ₹ 2,31,138/- (i.e. ₹ 67,507/- + ₹ 49,586/- + ₹ 58,429/- + ₹ 55,616/-) and dated 08.12.2015 amounting to ₹ 1,39,292/- and handed over the printed/designed material along with the invoices for the said amount to the authorised persons of the Corporate Debtor and requested for payment within time. 6. It is submitted that on 01.1.2016, the Corporate Debtor deducted the TDS of ₹ 3,711/- on the total amount of job-work of ₹ 3,71,008/- carried out by the Applicant during the above said period for the Corporate Debtor. It is also submitted that the Applicant requested the Corporate Debtor to make the payment of due amount of ₹ 3,67,297/- arrived at after deducting the TDS amount of ₹ 3,711/-, which was not paid to the Applicant, even after the expiry of given payment period. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand notice from the Applicant before filing this petition. It is alleged by the Corporate Debtor that the purported demand notice dated 08.2.2018, said to have been sent on 12.02.2018, is in contradiction to the documentary evidence of the postal receipt placed on Page 71 (sic) of the Petition showing postal dispatch on 26.09.2018, and said to have been delivered to the Corporate Debtor, whereas in fact, it has never been served. The Corporate Debtor has stated that demand notice under section 8 is not just a formality but a mandatory requirement of law. In this regard, the Corporate Debtor has place reliance on the judgment delivered by the Hon'ble NCLAT in case of Sunil Sanghavi v. Cytech Coating (P.) Ltd. [2018] 100 taxmann.com 191/[2019] 151 SCL 97. 11. The Corporate Debtor has submitted that the amount shown as debt of ₹ 3,67,297/- is arbitrary and not based on facts. The supplies made by the Applicant vide their Invoices Nos. 37, 38, 39, 40, 41 and 44 were rejected by the Corporate Debtor and debit notes were then issued and personally handed over to Mr. Tilak Raj Tiwari, the Authorised Representative of the Applicant. It is submitted that if the amount of De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Corporate Debtor also submitted that the bank account statement produced by the Applicant is not supported with the Banker's Certificate of the respective bank, as required under the provisions of the Banker's Books Evidence Act. 14. The Corporate Debtor has submitted that the purchase orders contained all the details with regard to payment terms, delivery time and also the specifications with regard to the design colour etc. and other credentials depending upon the specific export order for which the job-work was done, It is submitted that just to conceal this fact, the Applicant has not produced any of the purchase orders issued from time-to-time. Further, the last supplies were made on 08.12.2015 and the transaction by way of debit notes took place on 20.01.2016 and 12.03.2016 and thereafter there have been no business dealings. If the Applicant was keen to get payment of his supplies, he ought to have sent at least some communication, but no such communication was made by the Applicant to the Corporate Debtor. 15. The Corporate Debtor further submitted that no affidavit in support of the documents has been filed along with the petition. It is also submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding from your end against which another email was sent asking for account copies. It is submitted by the Applicant that the statement therein approx. ₹ 72,000/- is outstanding from your end is contrary to the reply filed by the Corporate Debtor wherein it is stated that ₹ 3,48,541/- is outstanding. Thus, the Applicant submitted that communication between V. Together and Siddarth India does not establish that there is any pre-existing dispute with regard to M/s. V. One and M/s. Siddarth Organisation Ltd. 21. The Corporate Debtor has filed written arguments and submitted that there is a pre-existing dispute from January, 2016 when debit notes were raised due to rejection of goods for which due intimation was given to Mr. Tilak Raj Tiwari representative of the Applicant and also through email. It is stated that Mr. Tilak Raj Tiwari had called Mr. Sandeep Kukkar Director of the Corporate Debtor and had told him that due to massive fire in December, 2015 in the factory of M/s. V.S. Textiles and Mangal Textiles at Ahmedabad, where the Applicant was getting job-work of printing and designing done, the Applicant could not comply with the terms of purchase order placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant, the Corporate Debtor had neither raised any dispute nor made payment. With respect to various objections of the Corporate Debtor, it is further observed as follows: (i) While the Corporate Debtor assails the proof of service of demand notice of February 2018, the same has been adequately addressed, upon directions of this Adjudicating Authority, with supporting proof of delivery from the Department of Posts This is further fortified by presumption under the Indian Evidence Act, 1872, of delivery in the normal course, particularly since a copy of the Postman's delivery sheet has been furnished. Non-disclosure of or lack of clarity about the identity of the receiving person, or absence of corporate seal on the postman's delivery sheet, is of little consequence especially since the postal article has not been returned to the sender. Moreover, there has been no initiative for setting dues after issuance of notice on the case filed before this Adjudicating Authority, which is the underlying rationale for prior issuance of demand notice under section 8 of the Insolvency Bankruptcy Code, 2016. (ii) The Corporate Debtor in its reply has referred to proof of dispatch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise, relevant individual invoices are not barred under limitation, considering elapsed time(s) between due dates of payment of invoices and the date of filing of the petition/application. (vii) The Corporate Debtor has alleged that the Operational Creditor has not filed purchase orders. However, it is seen that the Corporate Debtor has not bothered to file any copies of the same either. If these were significant and established or corroborated any defence, then the Corporate Debtor should have filed copies of the same, being the party that originated the said documents and also seeking to pivot arguments around the same. (viii) The Corporate Debtor has stated that the Operational Creditor has not filed any affidavit in support of documents or declaration of non-dispute. However, it is seen that there is substantive compliance of the same under a common affidavit in the petition. Moreover, the fact of invoices in question and the payments that have already been effected is undisputed. (ix) It is seen that defences raised by the Respondent/Corporate Debtor and their focus changed through the course of hearings before this Adjudicating Authority. The aspect of fire in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantive proof that a dispute exists relating to the subject matter of this Application. The Corporate Debtor does not have a credible story that is not stumped by contradictions or chinks in the narrative. (d) In the matter of Topsgrup Services Ltd. v. BLS IT-Services (P.) Ltd. [2018] 94 taxmann.com 305, the Hon'ble NCLT, New Delhi held as follows: Respondent has taken the stand that there is existence of dispute with respect to the debt and demand in question. There has been no clear communication of dispute to the Applicant about deficiency in services. No damage/counter claim has been lodged. No arbitration and/or legal proceedings in the matter are pending. When there is absolutely no document or particulars to support the claim of existence of dispute, the mere claim of dispute that rose in the reply given belatedly after issue of notice u/s. 8 of IBC and in the pleadings in defence can be termed as motivated to evade the liability and thus, dismissed. Hence, the above observations support the finding arrived at that the belatedly raised dispute without establishing nexus and relevance cannot be termed as genuine dispute. 24. Hence, this Tribunal is incline ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
