TMI Blog2020 (8) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9, it is always open to the Corporate Debtor to point out pre-existence of dispute. It is to be shown that the dispute was raised prior to the issuance of demand notice under Section 8(1). The existence of dispute must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice. If it comes to the notice of the Adjudicating Authority that the operational debt is exceeding ₹ 1 lakh and the application shows that the aforesaid debt is due and payable and has not been paid, in such case, in absence of any existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor and has raised several invoices against the Corporate Debtor. The invoices are payable within 15 days from the date of issue of the invoices, after which the Corporate Debtor would be liable to pay interest @ 18% per annum on the outstanding dues. The Operational Creditor submitted that it had sent several reminders through email and made numerous personal visits regarding pending bills and invoices but all went in vain. Therefore, the operational creditor issued demand notice under Section 8 of the I B Code dated 20.03.2019 on the Corporate Debtor, which was duly received by the Corporate Debtor through post on 27.03.2019. The Applicant submitted that the Corporate Debtor has neither replied to the Demand Notice nor raised any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e final calculation as per respondent remained as 22 tones of Paradise GO-6 with 8 tones of Paradise Go-05 makes as total of 30 tons of cargo. 7. Respondent stated that suspecting some sort of deceit and mischief on the part of appellant, Respondent searched its previous records and found out that four cargo trucks which were disappeared in 2013 carrying 115 MT of cargo in total, were intentionally never marked as received by appellant. 8. Respondent stated that the amount of ₹ 3751623/- excluding interest raised by appellant is not admitted. Respondent stated that bills amounting to ₹ 2918599/- were duly raised for the services rendered, however, the same are liable to be adjusted against the claims of the respondent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what are the facts to be examined by the Adjudicating Authority while examining an application under Section 9, which are whether there is an operational debt as defined exceeding ₹ 1 lakhs; whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid; whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of demand notice of the unpaid operational debt in relation to such dispute. The Hon ble Supreme Court held that if any one of the above conditions is lacking, the application would have to be rejected. 13. From the aforesaid decision, it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying in rejected condition. We have gone through the email exchanged between the parties. The Respondent vide email dated 20.11.2018 (Page 71) informed the appellant first you have to give our cargo of 225 MT then automatically will clear your payment. The Corporate Debtor raised the invoice of ₹ 40,17,321/- on the appellant towards 225 MT of Mustard De Oiled Cake (DO) on 31.3.2019 (Page 73 of Reply). The appellant has provided Godown Wise Stock Report to the respondent regularly and the Respondent has never raised the dispute. When the appellant has demanded his payment then the respondent raised the dispute of 2013. The Respondent showed no evidence to prove that the respondent raised the dispute when the appellant intimated him t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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