TMI Blog2020 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and also in reply to the Demand Notice as required U/S 8(2)(a) of IBC. Operational Creditor has not stated anywhere about the notices, which are issued prior to the issuance of demand notice and it has come to the notice of Operational Creditor that Corporate Debtor is claiming upon the documents and on the basis of that documents, Corporate Debtor claimed that statement of accounts is confirmed and several correspondence have been made and there is no debt due as on 01.04.2018. Operational Creditor has not explain why they have not sent the rejoinder to the reply filed by the Corporate Debtor in response to the legal notice and why they have not disclosed about these documents in the main application, which have been referred in the reply to the legal notice dated 11.08.2018 rather Operational Creditor raised this issue that these documents are forged and fabricated, when Corporate Debtor appeared and filed the reply and enclosed all the documents along with the reply. In the present case, the Corporate Debtor has enclosed documents prior to the issuance of demand notice and all these documents referred by the Corporate Debtor in the reply to the legal notice dated 28.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould in turn make lump sum payments periodically, within 120 days from the date of the oldest unpaid invoice. The sales and receipts of payments reflected in the ledger maintained by the Operational Creditor. The Principal Operational Debt herein pertains to purchases of Aluminum (Ignots and wire rods) from the Operational Creditor for the period 25.12.2017 to 22.01.2018. These sales are documented in the invoices bearing the following numbers:- WWMPL/DG/0122-0163 and WWMPL/DG/0167-0169. 4. These invoices amounted to a total unpaid amount of ₹ 13,07,50,666/- which forms the Principal Operational Debt on account of sale of goods. The operational Creditor performed its obligations in accordance with the agreed terms and continued to supply the material ordered. Whereas the Corporate Debtor failed to fulfill its obligations and defaulted in making payments to the tune of ₹ 13,07,50,666/- for the supplies made from 25.12.2017 to 22.01.2018 vide aforementioned invoices. The Corporate Debtor despite repeated requests and reminders has failed to clear his outstanding debt. On the Principal Debt on account of sales, interest at the rate of 18 per cent per annum for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said reply the Corporate Debtor has admitted the maintenance of a mutual running account in para 5. The Corporate Debtor has referred to a non-existent settlement and reconciliation of accounts allegedly on 31.03.2018. The Corporate Debtor has not attached any proof of such reconciliation. In absence of any proof of the same, the averments are nothing but a mere denial of liability. A perusal of the ledger account of the applicant for the FY 2017-2018 shows that the last sale to the Corporate Debtor took place on 22.01.2018 and the last payment was received on 23.02.2018. Thereafter a balance of ₹ 13,07,50,666/- is due and payable on account of sales. The Principal Operational Debt is due and payable from the date on which the invoices were raised and material delivered i.e. the individual dates of the invoices in the period from 25.12.2017 to 22.01.2018. The total Principal Amount has been due since 28.02.2018, when the last transaction with the Corporate Debtor took place and it failed to make payments despite having received goods and invoices. The operational Debt herein further became due and when the Corporate Debtor failed to make payment and comply with demand notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Corporate Debtor from the Operational Creditor between 01.04.2017 and 22.01.2018, no amount was payable by the Corporate Debtor to the Operational Creditor as on 01.04.2018. The copy of the confirmation of accounts dated 01.04.2018 with the reply annexed as R-3 at page 34 to 62 of the reply. During the Financial Year 2017-2018, Corporate Debtor confirms the receipt of payments on 03.11.2017 for ₹ 1,95,85,789/- against LC on 07.11.2017 for ₹ 97,94,940/- against LC and on 10.11.2017 for ₹ 48,92,871/- against LC. Further, some of the subsequent entries of payment between 19.02.2018 and 31.03.2018 as reflected in the ledger of the Corporate Debtor in favour of Prominent Metals Pvt. Ltd. as per instructions of the Operational Creditor have been deliberately omitted from the ledger. Further, the Corporate Debtor states that the Operational Creditor has given credit to the Corporate Debtor payments made by the Corporate Debtor on 16.03.2018 and on 23.03.2018 for a sum of ₹ 8,43,00,000/-, break-up of which is as follows:- (a) ₹ 2,55,00,000/- (b) ₹ 2,40,00,000/- (c) ₹ 2,48,00,000/- (d) ₹ 1,00,00,000/- 7. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of demand notice. 9. The applicant has filed rejoinder to the reply filed by the Corporate Debtor and the facts of the rejoinder in short is that letters or confirmation of accounts filed by the Corporate Debtor is false, forged, fabricated and manufactures and the signatures of the directors and associates of the applicant and its sister concern are also forged, fabricated and manufactured. Further, Corporate Debtor fails to establish the persons, who have signed the alleged letters, vide which the alleged transfer entries are purported to have been made had any authority whatsoever to sign the alleged letters or to authorize the alleged transfers and no related documents have been placed. Further, articles and memorandum vest all the powers in the directors only and whenever the seal stamp of the company is to be used anywhere, it is mandatory for at least one of the director's to be present and to sign the document where the seal stamp of the applicant company is used and the position with regard to the sister concern of the applicant company and so as per Doctrine of Constructive Notice, respondent be deemed to have knowledge of Articles and Memorandum of Associati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that no document has been produced by the respondent as required under Section 8 of the IB Code to show that debt has been discharged. He further placed reliance upon the various letters alleged to have been exchanged between the parties to show that these entries have been agreed to by both the parties which are annexed as R-4 to 15 but these documents are forged and fabricated. He further submitted that the signatures of the above mentioned letters are alleged to be those of clerical employee of the Operational Creditor, who had no authority whatsoever to allow setting off such huge amounts. He further submitted that all the invoices of the Operational Creditor have been signed by the director but letters allegedly signed by one Sandeep on behalf of Worldwide Metals Private Limited and by one Yogender on behalf of M/s. Prominent Metals Private Limited and these clerical employees had no authority to sign these documents on behalf of petitioner or its sister concern. He further submitted that it is settled principal law that to bind any company by the acts of an employee, who so wishes to bind the company has to show that the employee had authority to do the act with which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor and its Sister concern, therefore, these documents, which are annexed at page 97 to 134 of the Reply are forged and fabricated and manufactured by the Corporate Debtor therefore, Operational Creditor by making such submission themself raised the dispute. He further submitted that on the basis of ledger account, which the Corporate Debtor referred in the reply, there is no debt due. He further submitted that there exists a pre-existing disputes and in this regard he placed reliance upon the decision of Hon'ble Supreme Court in the matter of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. He further submitted that applicant has not raised these facts in the application that the documents were forged and fabricated rather he concealed these facts. 15. He also placed reliance upon the decision of Hon'ble NCLAT in the matter of M/s. Global Infonet Distribution Pvt. Ltd. Vs. M/s. Tespa Infotech Pvt. Ltd. Company Appeal (AT) (Insolvency) 185 of 2019 in the matter of SP Concrete Product Pvt. Ltd. Ltd. Vs. Advaitha Ventures Pvt. Ltd. Company Appeal (AT) (Insolvency) no. 648 of 2019. 16. He further takes a plea raised by the applicant regarding the Doctrine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Operational Creditor, who had no authority whatsoever to allow setting of such huge amounts and these documents are forged, and fabricated and manufactured, so, no reliance can be placed upon these documents. 20. In the light of submissions, when we have gone through the documents then we find that the Demand Notice was issued on 27/10/2018 and reply to the Demand Notice was sent on 05/11/2018 within the period prescribed U/S 8(2) of IBC but these documents are prior to the issuance of demand notice. We further find, in the reply to the Demand Notice, same points have been referred by the Corporate Debtor, which the Corporate Debtor had raised in the reply to the legal notice dated 11.08.2018 and this fact has also been admitted by the Operational Creditor. Since the Operational Creditor submitted that there is a difference between preexisting dispute and the discharge of debt and in this regard he placed reliance upon the Section 5(6) read with Section 8(2) of the IBC, therefore, at this juncture, we would like to refer Section 5(6) and Section 8 of the IBC and the same are quoted below:- Section 5(6) dispute includes a suit or arbitration proceedings relating to-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Corporate debtor also claim that debt has been satisfied but fails to produce the documents as required U/S 8(2)(b) of IBC is concerned when we shall consider the first submission of Operational Creditor along with this submission then we are of the view that second submission of Corporate debtor is related with first submission in support of this contention the Corporate debtor enclosed the documents with the reply which we have referred in the aforementioned Para and which are duly signed by the Operational Creditor regarding the confirmation of accounts and various correspondence made between the parties and one M/s. Prominent Metals Pvt. Ltd. By filing rejoinder Operational Creditor claimed that these documents are forged and fabricated. When we shall consider the submissions raised on behalf of Operational Creditor as well as Corporate Debtor then we find that documents upon which the Corporate Debtor placed reliance, these documents are executed prior to the issuance of demand notice and reference of these documents were given in the reply to the legal notice dated 28.08.2018 and we further find that neither the legal notice nor the reply sent by the Corporate Debtor in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 the application. 24. In the light of the aforesaid decisions when we shall consider the case in hand then we find that the Corporate Debtor has enclosed documents prior to the issuance of demand notice and all these documents referred by the Corporate Debtor in the reply to the legal notice dated 28.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
