9911796707
TMI Blog2020 (8) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... BANSI LAL BHAT, J. Respondent- 'M/s. Dynamic Cables Limited' ('Operational Creditor') filed application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") before the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata seeking initiation of 'Corporate Insolvency Resolution Process' against 'M/s. India Power Corporation (Bodhgaya) Limited'- ('Corporate Debtor') alleging default of operational debt amounting to Rs. 2,32,46,235/-. The application came to be admitted in terms of the impugned order dated 8th November, 2019 with consequential orders of slapping Moratorium on the 'Corporate Debtor' and appointment of Ms. Savita Agarwal as 'Interim Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 2018 asking the 'Operational Creditor' to take back the cables supplied by it which were lifted by the 'Operational Creditor', thus leaving no claim unpaid. On consideration of the respective stands taken by the parties, the Adjudicating Authority found that the goods taken back by the 'Operational Creditor' were the goods supplied pursuant to Letter of Award dated 9th April, 2018 while the value of goods supplied in respect of one purchase order remained unpaid. The Adjudicating Authority has referred to a subsequent development in the nature of a letter dated 27th August, 2018 emanating from the 'Corporate Debtor' on 27th August, 2018 which is subsequent to lifting of goods on 20th August, 2018 wherein the 'Corporate Debtor' has reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the 'Operational Creditor' has made claims even against the materials which have been lifted by it and suppressed material facts about preexistence of dispute. It is submitted that reconciliation of accounts was in progress to ascertain the amount payable after lifting of goods by 'Operational Creditor' but the move was pre-empted by the 'Operational Creditor' by filing the application under Section 9. It is submitted that the Adjudicating Authority could not have reached the finding in regard to the pre-existence of dispute being an afterthought. It is lastly submitted that the Adjudicating Authority did not render any findings on the quantum of default which was approximately Rs. 58,000/- only, therefore, not warranting initiation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the record, we find that supply of materials by 'Operational Creditor' to the 'Corporate Debtor' under the purchase order and LoA is not in controversy. It is also not in controversy that some of the goods lying unutilised in Gaya DF Area, exposed to vagaries of Nature or pilferage, were lifted back by the 'Operational Creditor' at the specific request of the 'Corporate Debtor'. The conclusion drawn by the Adjudicating Authority on the basis of material brought on record by the parties that dispute in regard to quality of goods not matching the specification of franchiser was for the first time raised by the 'Corporate Debtor' in its reply to the demand notice, justifies the conclusion that the defence raised was an afterthought and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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