TMI Blog2020 (10) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 - 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. The appellant has not been able to establish that she is an operational creditor in the case and a relationship of corporate debtor and operational creditor exists between the Appellant and the Respondent as required in the IBC. Therefore, she cannot claim any relief under Section 9 of the IBC - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 566 of 2020 - - - Dated:- 20-10-2020 - (Justice Bansi Lal Bhat) Acting Chairperson And (Dr. Alok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PET bottles. 3. The Operational Creditor has mentioned in Item 6 of Form 3 that it had agreed to deliver the material as per oral contract with the Corporate Debtor and the Corporate Debtor has received the delivery of the material, but it has paid only an amount of ₹ 21,00,000 out of total amount due of ₹ 2,40,95,981/-. 4. On receipt of the demand notice, the corporate debtor N.R. Commercials Private Limited replied through letter dated 18th July, 2019 denying existence of any business relationship between him and the operational creditor. It has also denied existence of any claim and unpaid operational debt and labelled as figments of operational creditor s imagination. He has also denied existence of any operational debt and hence any default and maintained that the claim of operational creditor is based on false and fabricated documents in the absence of supply of any material by the operational creditor to the corporate debtor. 5. The Corporate Debtor in his reply to the demand notice has also stated that in case of supply of material to any purchaser, there would be a trail in the forms and returns filed before the statutory authorities including VAT ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 21.11.2016 for the amount of ₹ 16,76,194 is within limitation as the petition was filed on 27.9.2019, which is within three years from the date of invoice. 10. In view of the complete denial by the corporate debtor and the discrepancies found in various documents submitted by the operational creditor, Adjudicating Authority has inferred that the operational creditor has not been able to, prima facie, prove her case and therefore, dismiss the application filed under Section 9 of IBC. It has, however, not precluded the operational creditor from initiating recovery proceedings before the appropriate legal firm, provided she can establish her case. 11. We perused the appeal memo and the reply submitted both by the parties alongwith their written submissions. We also considered the detailed oral arguments advanced by both the parties in hearings. 12. The Demand Notice given to the Corporate Debtor by the Operational Creditor dated 08.07.2019 contains details of the supplies of polymer granules and transactions ostensibly made between the Operational Creditor and the Corporate Debtor. The amount of debt shown at S.No. 1 of the Demand Notice is ₹ 3,24,31,116/- whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.12.2015, 16.01.2016, 28.01.2016, 03.05.2016, 04.05.2016, 28.05.2016, 26.06.2016, 08.07.2016 and 21.11.2016. No other document has been submitted by the appellant to corroborate the existence of these supplies by way of purchase orders, e-way bills, tax invoices and their remittance receipts. It is noted by the Hon ble Adjudicating Authority that all the invoices contain just a stamp of N.R. Commercials Pvt. Ltd. stating Stocks Received . There are no signatures above the stamp and no clear identification of the person receiving the supplies has been mentioned neither any evidence of transportation of the said supplies. The appellant has failed to establish a seller-buyer relationship between her and the respondent and hence no relationship of corporate debtor and operational creditor could be proved by the appellant. 16. The operational creditor has claimed a payment of ₹ 24,51,080/- through cheque nos. 33702 dated 30.09.2015, 33705 dated 10.11.20015 and RTGS payment dated 23.12.2015 towards three invoices all of which pertain to the year 2015. The operational creditor has not been able to show that these payments were made to the corporate debtor against the supplies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment of unpaid operational 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. 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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