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TMI Blog2020 (10) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... les as operational creditor to the corporate debtoron verbal orders against 14 different invoices starting from 24.8.2015 to 21.11.2016 and thereby made supplies to the corporate debtor amounting to Rs. 2,40,95,981 (Rupees two crore forty lakh ninety five thousand nine hundred and eighty one only). It is claimed that the corporate debtor paid a total amount of Rs. 24,51,080 through cheque nos. 33702 and 33705 dated 13.9.2015 and 10.11.2015 respectively and through RTG dated 23.12.2015 towards 3 invoices No.02/Sep/15 dated 12.9.2015, invoice no. 1/Oct/15 dated 9.10.2015 and invoice No. 01/Dec/15 dated 20.12.2015. II. The Appellant sent a statement of ledger account along with notice through Registered Post A.D dated 7.5.2018, but received no response to this communication from the corporate debtor. III. Thereafter the Appellant(Operational Creditor) sent a demand notice in Form 3 as specified under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 dated 08.07.2019 wherein it showed amount due as Rs. 3,24,31,116/-(Principal amount Rs. 219,95,981 + Interest calculated @ 18% per annum is Rs. 1,04,35,135/-), The operational creditor is a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /GB/2019 and order was passed by the Adjudicating Authority on 18.2.2020. The application under Section 9 of IBC as the operational creditor prima facie failed to prove her case. This order has been impugned by the operational creditor in this present appeal before Hon'ble NCLAT. 7. A reply was filed by the respondent on the appeal on which a rejoinder was submitted by the Appellant. The respondent also filed written submission in support of their case. These documents have been considered by us along with oral statements advanced by both the parties. 8. The Adjudicating Authority has considered the pleadings of both sides and the documents submitted by them, which include copies of invoices relied upon by the operational creditor and the bank statement of operational creditor's account pertaining to the period 23.7.2015 to 30.10.2015 issued by the Central Bank of India and the Ledger Account Statement of the Appellant in order to corroborate the supplies made to the corporate debtor and the payment made thereon by the corporate debtor to operational creditor. The Adjudicating Authority has also looked at the application under section 9 of the IBC and the invoices mentioned there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Creditor' and 'Corporate Debtor' exists. 14. The Demand Notice sent by the Appellant to the Respondent contains no details of purchase orders given by the Respondent and mentions that the purchase orders were all given verbally and the contracts were oral. The reply of the respondent to the demand notice flatly denies existence of any buyer-seller relationship between the two parties. It has denied placing any orders for supply of materials with the Appellant and also denied making any payments for the said fictitious supplies. He has gone to the extent of claiming that the claim of operational debt is based on false and fabricated documents and stated that the supply of any material to any purchaser leaves a trail in forms and returns filed before the statutory authorities including VAT returns and remittances of output taxes. There should be valid way bills, and transporters' documents. In the absence of such supporting and corroborating documents and also any valid purchase order signed by the authorized signatory of the respondent the entire claim of the appellant is only false, fabricated and made with the malafide intention of harassing and blackmailing the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013), a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2009 (6 of 2009), or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider; 3. (8) "corporate debtor" means a corporate person who owes a debt to any person; 3. (10) "creditor" means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, and unsecured creditor and a decree holder; 3. (11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; 5. (20) "operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; 5. (21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operational creditor or receiving any supply from her, he has in his reply to Demand Notice challenged the operational creditor to provide proof to substantiate her claim. The only evidence that the operational creditor has produced in support of her claim are a total of fourteen invoices (out of which only one is found under limitation for the purposes of IBC) which she has not been able to corroborate through any other document such as way bill, transportation document, tax invoice or tax remittance receipts. 20. Thus the operational creditor has not been able to prove any purchase order being given by the Respondent for supply of polymer granules by her and rebut the averment and argument of corporate debtor calling the claim false and fabricated. Since the supply of goods is not established as required under Section 5(21) of the IBC, the existence of any payment towards such purchase is not established. There is most certainly a dispute regarding the existence of purchase and sale of polymer granules as claimed by the seller M/s Shruti Impex and hence the facts provided by the Appellant in her application under section 9 of the IBC are in dispute. The Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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