TMI Blog2020 (5) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... en able to prove that a dispute truly exists in fact. The dispute sought to be raised is spurious, hypothetical and illusory and assertions of fact unsupported by evidence. The dispute sought to be raised is therefore, rejected. Time Limitation - HELD THAT:- Section 238A of the Code inter alia provides that the provisions of the Limitation Act, 1963 shall, as far as may be, apply to the proceedings before the Adjudicating Authority. The specific dates of default are not given in Part IV of the application. We have therefore, to accept the averment of the learned counsel for Quickdel that the limitation starts from 14-9-2015. The effect of the acknowledgement dated 2-8-2016 (Annexure-F of the application) is required to be examined - In the present case the acknowledgement of liability in writing is made before the expiration of the period for filing suit or application in respect of the claimed amount of ₹ 42,49,251. The acknowledgement dated 2-8-2016 is signed by Ms. Varsha Goel, Accounts Executive of Quickdel. No specific averment has been made that Ms. Varsha Goel, Accounts Executive was not authorized to sign the acknowledgement. Therefore, as per Section 18 of the Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckdel confirmed that as on 31-3-2016, it owed an amount of ₹ 42,49,251 to Grey Orange. It is further stated that Shri Hemant Garg, Manager of Quickdel in two emails dated 19.05.16 and 11-8-2016 and Mr. Rajesh Chundi, CTO of Quickdel in his email dated 12-8-2016 acknowledged the successful automation of the system in terms of the agreement and approved the consequent obligation to release the due payment to Grey Orange. It is stated that legal notices dated 20-3-2017 and 04-4-2017 to Quickdel for recovery of the due amounts remained un-responded. The amount claimed to be in default is stated to be ₹ 42,49,251 and default in payment of the debt is stated to have occurred when Quickdel failed to make payments against each of the invoices raised by Grey Orange on or before the due dates set out in the agreement and respective purchase orders and on 2-8-2016 when Quickdel admitted through a written confirmation of the amount due to Grey Orange. 3. Demand notice is stated to be sent on 22-11-2018 for unpaid operational debt of ₹ 50,02,847 (Annexure-M of the petition) and reply received from Quickdel vide letter dated 13-12-2018 (Annexure N of the petition). A fresh D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, which is otherwise complete, the adjudicating authority must reject the application under section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. 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 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 to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 8. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19-5-2016, 11-8-2016 and 12-8-2016 supra are fully replied to by Grey Orange. Therefore, the claim of Quickdel that the email dated 10-10-2015 evidences pre-existing dispute cannot be accepted. The contention that debit note dated 15-3-2016 of ₹ 12727 was imposed upon Grey Orange for non-performance does not help Quickdel since the description in the debit note (Annexure C-3 of the reply) of FA Item is entirely different. Further, in view of the emails of Quickdel dated 19-5-2016, 11-8-2016 and 12-8-2016 supra, the delay in commissioning of the system becomes irrelevant. Moreover, as argued by the learned counsel for Grey Orange, no penalty was levied under clause 10(a) of the agreement for delay in commissioning the system. 10. Quickdel has referred to emails dated 8-9-2016, 01-10-2016, 06-10-2016 and 01-11-2016 (Annexure C-4 of the reply). These emails have reference to integrating the sorter with the new ERP. However, Quickdel has not been able to show that the integration of the software with new ERP was required to be made by Grey Orange under the terms of the agreement dated 3-7-2015. Similarly, the plea raised regarding sorter machine not being dismantled a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat as per the account statement as on 31-3-2016, ₹ 50,02,846 is receivable from Quickdel and that on 2-8-2016, confirmation was received that as on 31-3-2016, Quickdel owed an amount of ₹ 42,49,251 to Grey Orange. Relevant email from Ms. Varsha Goel, Accounts Executive of Quickdel and copy of the written communication are stated to be filed at Annexures-E and F of the petition. In the reply, Quickdel has stated that after checking the record, it is submitted that no such letter even signed acknowledged by Grey Orange or its employee as alleged as per the records maintained by Quickdel and the same is forged and fabricated. In the absence of any evidence to support the contention, the genuineness of the emails and the confirmation (Annexure-F of the petition) is accepted. 14. In view of the above discussion, it is held that Quickdel has not been able to prove that a dispute truly exists in fact. The dispute sought to be raised is spurious, hypothetical and illusory and assertions of fact unsupported by evidence. The dispute sought to be raised is therefore, rejected. 15. During the course of the hearing, the learned counsel for Quickdel has submitted that the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght; (b) the word signed means signed either personally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 17. In the present case the acknowledgement of liability in writing is made before the expiration of the period for filing suit or application in respect of the claimed amount of ₹ 42,49,251. The acknowledgement dated 2-8-2016 is signed by Ms. Varsha Goel, Accounts Executive of Quickdel. No specific averment has been made that Ms. Varsha Goel, Accounts Executive was not authorized to sign the acknowledgement. Therefore, as per Section 18 of the Limitation Act, a fresh period of limitation is to be computed from the time when the acknowledgement was signed. 18. The argument of the learned counsel for Quickdel is that the acknowledgement relates to balance as on 31-3-2016 and therefore, a fresh period of limitation is to be computed from 31-3-2016. We may note that Section 18 of the Limitation Act, 1963 specifically states that a fresh period for limitation shall be computed from the time when the acknowledgement was signed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 23. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of Section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 24. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under section 33 as the case may be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the Corporate Debtor shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under section 18 and other relevant provisions of the Code, including taking control and custody of the assets over which the Corporate Debtor has ownership rights recorded in the balance sheet of the Corporate Debtor etc. as provided in Section 18 (1) (f) of the Code. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the Corporate Debtor; (iv) The Interim Resolution Professional shall strictly act in accordance with the Code, all the rules framed thereunder by the Board or the Central Government and in accordance with the Code of Conduct governing his profession and as an Insolvency Professional with high standards of ethics and moral; (v) The Interim Resolution Professional shall cause a public announcement within three days as contempl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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