TMI Blog2020 (1) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-Section 6 of Section-5 of the IB Code. The contention raised by the Corporate Debtor was neither spurious nor hypothecated nor illusory and infact there is a dispute with respect to delivery of goods in good condition at the destination place. The existence of non-disputed debt is sine-qua-non nor for initiation of CIRP under Section 9 of the IB Code, the IB Code is intended to be a substitute to a recovery forum - In the present case, the dispute was raised before the issuance of notice under Section 8 besides the correspondence placed on record shows that the liability has been disputed and there is a plausible dispute pre-exist between the parties. The claim of the operational debt in question is not free from dispute. Rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. It is submitted that the Respondent Company, Garden Silk Mills Limited having its registered address at Yarn Marketing Division, Tulsi Krupa Arcade, 5th Floor, Puna Kumbharia Road, Dumbhal, Surat, Gujarat and was incorporated on 23.07.1979 with Corporate DIN No. L17111GJ1979PLC003463, having Authorized Share Capital of ₹ 60,00,00,000/- and Paid up Share Capital of ₹ 42,08,25,000/-. 4. The Petitioner was engaged by the Respondent Company to transport its goods meant for export from its plant at Village Jolwa, Taluka Palsana, Surat to Adam Hazira Port. For these services, during the month of April and May 2019, an amount of ₹ 17,15,000/- alongwith interest @18% is due from the Corporate Debtor. 5. The Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Sr. No. 1 of Clause No. 8 of Part V containing 'List of Other Documents' read with Annexure-C, it is submitted that copy of invoices allegedly issued by the Petitioner to the Respondent Company have not been provided at Annexure-C. It is submitted that Annexure-C contains 'Bill Summary of April, 2019' and 'Bill Summary of May, 2019' at pages 33 to 49. It is submitted that the said Bill Summary should not be considered as Tax Invoice . 6.1.4. It is stated that the Respondent Company alongwith the notice dated 22.11.2019 through its Advocate Mr. Tushar J. Baxi has sent a debit note dated 01.11.2019 for ₹ 13,36,761/- and a cheque of ₹ 5,20,340/- dated 25.11.2019 to the Petitioner. Said cheques of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Respondent has informed him vide Email dated 25.06.2019 that Insurance claim was pending and once the same was settled payment to be made to the Petitioner (page 68 of the petition). 11. Perused the documents submitted by the parties. (i) The Petitioner has not attached any documents showing authority given to the Advocate for issuing Demand Notice. (ii) There is a shortage/theft of 12 MT in transportation of goods. The shortage/theft was intimated by the Corporate Debtor to the Petitioner and several communications have been taken place between the parties before issuance of Demand Notice and there is a pre-existing dispute. It is not clear, under whose custody the shortage/theft has taken place. The petitioner is not able ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 examine the merits of the dispute except to the extend indicated above. So long as a dispute truly exists in-fact and is not spurious, hypothetical, illusory, the Adjudicating Authority has to reject the application. 13. Thus, in case of dispute, this is not the forum to examine and adjudicate as to what extent the claim of the Petitioner is admissible as due and recoverable. Neither the Tribunal in the present proceedings will examine the merits of the respective claims. Moreover, even the adequacy of the dispute has not been seen. It is only to be seen whether the dispute raised by the Corporate Debtor quali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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