TMI Blog2020 (10) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Creditor has sent a mail to the Corporate Debtor to clear the outstanding dues of ₹ 14,58,176/- for which the Corporate Debtor has sent a reply e-mail - It is clear that the fact that there exists a 'dispute' between the parties even before the issuance of the Demand notice. Further, it may also be noted that the proceedings before this Tribunal is summary in nature and this Tribunal, unlike the Civil Court cannot indulge in the luxury of taking evidence, oral or otherwise as to its existence. The Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [ 2017 (9) TMI 1270 - SUPREME COURT ] held that the 'existence of dispute' and/or the suit or arbitration proceeding must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the same is only for the amendment of the cause title, the MA/135/2020 filed in IBA/834/2019 stands allowed. 3. A perusal of Part I of the Application shows that the Petitioner is a Sole proprietor. In relation to the Corporate Debtor, the particulars of the Corporate Debtor is given in Part -II from which it is seen that the date of incorporation of the Corporate Debtor is given as 06.05.2013 and the Nominal Share Capital of the Company is ₹ 15,00,00,000/- and Paid-up Capital is ₹ 14,87,00,000/-. The Registered office of the Corporate Debtor as per the Application is stated to be situated at No. 27, Saravana Street, T. Nagar, Chennai - 600 017. 4. In relation to Part III of the Application it discloses that the Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor submitted that the Operational Creditor supplied NKV Gypsum to the Corporate Debtor from 2017 onwards and whenever the same is delivered to the Corporate Debtor, the Operational Creditor raised several invoices and more particularly stated that on 15.07.207 and 22.08.2017, the Corporate Debtor had ordered for 1200 and 4400 bags respectively of NKV Gypsum Fine Plaster and the validity of the Purchase order is 30 days, but the Operational Creditor has not supplied the concerned bags on time and had prolonged more than a year for supply of the products and when these products were used to the building and sites and within days, the entire gypsum coat had melted down and got distorted which caused a loss of around ₹ 25, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such a dispute arises, the Arbitration Clause in the Purchase order can be invoked and this matter should be referred to Arbitral Tribunal as per the Arbitration and Conciliation Act, 1996. 11. The Learned Authorized Representative for the Operational Creditor has filed a rejoinder and has stated that in relation to the supply of expired materials, the Operational Creditor has given Credit note on 24.11.2018 for the sum of ₹ 1,01,850/- and new supply of materials was also done to the Corporate Debtor and the Corporate Debtor is trying to use this as a cover to colour the whole transaction and as such it is a patently feeble argument. Further, it has been submitted that even after supplies were made as per the Purchase Order the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchanged between the parties even before issuance of the Demand Notice. On 17.12.2018, the Operational Creditor has sent a mail to the Corporate Debtor to clear the outstanding dues of ₹ 14,58,176/- for which the Corporate Debtor has sent a reply e-mail, which is as follows; Dear Sir, We have all the proof that you supplied expired materials we need to do rework on the same. We have all the evidences that you cheated us. Hence we are not able to pay any more. Regards, Uday 15. Further a perusal of another email dated 17.12.2018, written by the Operational Creditor to the Corporate Debtor posits that the Operational Creditor has terminated the supplies to the Corporate Debtor; Dear Sir, The supplies we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, oral or otherwise as to its existence. 19. Further, the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited; held that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be and observed as follows; 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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