TMI Blog2020 (9) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustan Naresh Yadav since, notice of dispute has not been raised within the period prescribed under Section 8(2) of the IBC, therefore, in our considered view that cannot be taken into consideration when the Corporate Debtor in response to summons appear and filed the reply. The Corporate Debtor has not denied this fact that service has been rendered by the Operational Creditor the only grievance of the Corporate Debtor is that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor, we have already held that Corporate Debtor has not raised the dispute by filing reply within 10 days as prescribed under Section 8(2) of the IBC, rather filed the reply after 10 days of the delivery of demand notice. Moreover, we held that What's app communication is in between Hindustan Media Ventures Ltd. and Corporate Debtor and not with the Operational Creditor and except that there is no other document to show that record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute. In view of Section 9(5)(i)IBC, the Adjudicating Authority has to see that the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e raised in this regard at the rates specified in the purchase orders placed by Corporate Debtor, out of which amount due and payable as on ₹ 82,10,374/- plus Interest of ₹ 4,51,022/- aggregating to ₹ 86,61,396/-. As agreed terms and conditions, amount becomes due from the expiry of 30 days of the date of invoice. iv. The operational Creditor has sent several reminders to Corporate Debtor vide emails dated 08.05.2019. 10.05.2019, 13.05.2019, 16.05.2016, 24.05.2019 and 04.05.2019 seeking due amount along with interest thereon. However, the dues have not been paid till date. v. The demand notice dated 23.07.2019 under Section 8 of the Code was served by the Operational Creditor to the Corporate Debtor on 29/07/2019 and it was also served on the residential address of the directors, CFO Company Secretary of Company. vi. The Corporate Debtor sent reply to the demand notice dated 16.08.2019 to the Operational Creditor stating that the invoices raised clearly reflect the excessive and arbitrary rates, which has been charged and none of the invoices has been admitted/received or expressly signed by any representative from the corporate debtor company. 5. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant and Corporate Debtor. Also, there are no emails in the annexures as claimed in the reply by the Corporate Debtor. ii. The rates for the publication of the advertisements are dependent upon various factors including nature/type of advertisement, type/business of client, volume of deal, nature/category of advertisement and many others and therefore, same service can be provided to different parties at different rates. iii. The compliance of Section 9(3)(c) is directory in nature and not mandatory in nature. iv. Last payment of ₹ 10,70,931/- was received on 10.04.2019 from the Corporate Debtor and demand notice was issued on 23.07.2019. v. As per the terms and conditions of the invoice, discrepancy, if any, should have been raised/reported within a week from the receipt of invoice failing which the invoice shall be final. However, the Corporate Debtor has never raised any dispute regarding the same before filling the application. 7. We have heard the Ld. Counsels for the applicant as well as the respondent. 8. Ld. Counsel for Operational Creditor in course of his argument submitted that the demand notice was delivered on 29.07.2019 on the registered add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor has never issued a purchase order and the said purchase order enclosed with the petition is not signed by any person. 15. He further submitted that Corporate Debtor has placed an order for advertisement for another group namely. V Bazar with Hindustan Media Ventures Ltd. And the said company charged a very nominal and fair market rate for the same type of service and he also enclosed the copy of invoices generated by Hindustan Media Ventures Ltd. as Annexure A-5 and on the basis of that he claimed that Operational Creditor has charged abnormal, unjust and exorbitantly high price from the Corporate Debtor. He further submitted that Operational Creditor has generated different price invoices against the same service. 16. Now, in the light of the submissions made on behalf of parties, we have gone through the averment made in the application, reply and rejoinder and documents enclosed by the parties respectively and we find that Operational Creditor has claimed amounts on the basis of invoices, which the Operational Creditor has referred at page 15 to 20 of the paper book and we further find that Operational Creditor has sent the demand notice dated 23.07.2019. which was dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l debt--(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.--For the purposes of this section, a demand notice means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred. Section 9 (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish-- (a) a copy of the invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section. Mere plain reading of the provisions shows that under Section 8 of the IBBI Code on the claim of default, the Operational Creditor at first is required to deliver the demand notice of unpaid Operational Creditor and liberty is given to the Corporate Debtor to bring the notice of the Operational Creditor existence of the disputes and the payment of or other unpaid Operational Debt within a time of 10 days of the receipt of the demand notice. 18. Whereas Section 9 of the IBC Code 2016 says that after the expiry of period of 10 days from the date of delivery of the notice or invoice demanding payment under Section 8(1) IBC. if the Operational Creditor does not receive the payment from the Corporate Debtor or notice of the dispute has not been raised by the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor has filed an application, 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 it 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 assetion 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 examined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal 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 Securitisation 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. Further: (2) The supply of essential goods or services to the corporate debtor as may he specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time durin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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