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TMI Blog2018 (2) TMI 2014X X X X Extracts X X X X X X X X Extracts X X X X ..... tes. KCPL supplied various chemical materials to SBSL from 10.06.2013 on sale basis for a total amount of Rs. 2,04,89,209/-. As against it, SBSL PAID Rs. 1,35,63,492/- leaving outstanding of Rs. 69,25,717/- till 17.10.2013. AS per the purchase orders, the credit limit is only thirty days. SBSL issued cheque bearing No. 833604 for Rs. 22,01,782/- towards part payment but it was dishonoured on 02.09.2013. SBSL used to make part payments of running account basis. Accordingly, SBSL made payments of Rs. 47,69,709.64 after 17.10.2013 till the date of filing this petition. Details of payment are provided herein below: - Nos. Date Cheque No. Amount in Rs. 1 01.12.2013 RTGS 23 68 809/- 2 12.12.2013 RTGS 5,00,000/- 3 12.12.2013 RTGS 5,00,000/- 4 03.01.2014 RTGS 4,00,000/- 5 14.03.2014 RTGS 900.64/- 6 25.03.2014 001095 5,00,000/- 7 22.04.2014 RTGS 3,00,000/- 8 04.09.2014 RTGS 2,00,000/- Total payment received on sale account 47,69,709.64/- 3. Aforesaid payments were adjusted against outstanding amount in sale of material worth Rs. 69,25,717/- leaving outstanding of Rs. 21,56,007.36. MOU was entered between KCPL and SBSL on 31.10.2013 for job work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be returned. Raw material supplied by SBSL were never accounted in the books of KCPL. According to KCPL any dispute raised after receipt of demand notice shall not be treated as existance of dispute. KSPL also stated that the Dispute raised in the reply notice is not supported by any document. 7. Board Of Directors of KCPL in its meeting held on 16.08.2017 resolved to initiate proceedings against SBSL under the Insolvency and Bankruptcy Code, 2016 and further resolved authorising the Directors to Sign and execute such necessary notices, petitions, affidavits, declarations etc. Mr. Lakshak Patel, Director filed this petition. 8. KCPL filed copy of ledger accounts of SBSL in the books of KCPL copies of outstanding invoices along with copy of delivery challans, copy of delivery challans for receipt of raw materials for job work purpose, copies of two bounced cheques, copies of income-tax returns, copies of balance sheet and profit and loss account for the year 2016-17, copy of reply received from SBSL, copy of job work MOU and copy of Board Resolutions of KCPL. KCPL filed affidavit in support of the petition and the affidavit as required by 1B Code Section 9. KCPL also filed wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent that MOU was entered between KCPL and SBSL on 31.10.2013 for job work purpose. However, it is the case of the petitioner that the balance payment made by SBSL on 10.01.2015 by way of cheques were dishonoured and therefore the claim is within time. It is also case of the petitioner that the amount is in the form of running account and SBSL used to make part payments. Therefore, the claim of the petitioner is not at all barred by limitation by the date of filing Of this petition. Even otherwise, it is the contention of the learned PCS for operational creditor that provisions Of Limitation Act is not applicable for the proceedings in 1.3. Code. In support of his contention he relied upon the following decisions rendered by NCLAT, New Delhi. (1) Black Pearl Hotels Pvt. Ltd. vs. Planet M. Retail Ltd. in Company Appeal No. 91 of 2017 decided on 17.10.2017. (2) Sanjay Bagrodia vs. Sathyam Green Power Pvt. Ltd. in company Appeal NO. 193 of 2017 decided on 15.11.2017. In view of the above decisions of NCLAT it can only be said that Limitation Act is not applicable. 14. Crucial objection is the dispute raised by SBSL in the reply notice dated 05.09.2017. Dispute raised by SB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the raw material from the year 2014 onwards clearly goes to show that there is existence of dispute between KCPL and SBSL. He further contended that it is admitted case Of the petitioner that he has not furnished finished goods although raw material is available with him and that itself shows that KCPL violated terms and conditions of MOU dated 31.10.2013 and, therefore, there is existence of dispute even before issuance of notice and such dispute has been brought to the notice of the operational creditors in the reply to the demand notice as required by Section 8 (2) of the IB Code. 18. It is contended by learned CS for the operational creditor that till notice was issued no dispute was raised by SBSL and, therefore, the dispute is raised only as defence to this petition but it is not a real dispute. He further contended that issuance of cheques towards payment of outstanding amount goes to show that no dispute was raised by SBSL regarding the retaining of raw material and not doing job work as per MOU. 19. On the aspect of dispute, this Tribunal has to follow the judgement of Hon'ble Supreme Court of India in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atently feasible legal argument or an ascertain of facts unsupported by evidence. 21. In the judgement in United projects Constructions Ltd. vs. Aerocon Buildwell P. Ltd. also NCLAT, New Delhi only directed this Tribunal to reconsider, if there is any document available on record to suggest existence Of dispute prior to serving of demand note to operational creditor and whether respondent created certain documents to stall Corporate Insolvency Resolution Process against it. 22. This Tribunal has to see whether in fact of dispute exist, by the date of issuance of Demand notice. 23. The crucial aspect in this case is whether dispute mentioned in the reply notice given by the corporate debtor to the operational creditor was there in existence even before the date of issuance of demand notice under Section 8 Of the Code. Dispute mentioned in the reply notice is operational creditor failed to supply the finished goods as per MOU dated 31.10.2013. Operational creditor also retained the raw material that supplied to the operational creditor from and on behalf of the corporate debtor. The fact that raw material belonging to the corporate debtor has been retained by the operational credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early goes to show that there was no existence of dispute between the petitioner and respondent before issuance of demand notice. Therefore, it is a clear a case where a dispute has been raised for the first time in the reply notice. It is not a case where existing dispute has been brought to the notice of the petitioner by the respondent. 26. In that view of the matter and in view of the fact that petition is complete in all respects it deserves to be admitted. Petition is accordingly admitted. 27. In the case on hand petitioner has proposed the name of Mr. Sitansh Magia, Flat No. 6, Kamdar Chamber, A wing, Plot No. 251, Sion (East), Mumbai 400 022. 28. Adjudicating Authority hereby appoint Mr. Sitansh Magia, CS, as Interim Insolvency Resolution Professional having address at Flat No. 6, Kamdar Chamber, A wing, Plot NO. 251, Sion (East), Mumbai 400 022 with Registration No. IBBI/IPA- 002/IP-N00293/2017-18/10850 u/s 13 of the Code. 29. The interim Insolvency Resolution Professional is hereby directed to cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for submission of claims under Section 13 (l)(b) read with Section 15 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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