TMI Blog2020 (2) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... tention is based on the invoices placed on record where it is provided that Title to the goods invoiced herein will not pass from the seller to the buyer until the buyer has paid for the goods in full including any applicable expenses. The buyer of the goods, should within a reasonable time return the goods if the buyer rejects the sale. A buyer cannot keep the goods with him for an unreasonable time. It is seen here that the Corporate Debtor has not indicated to the Applicant, rejecting the goods supplied within reasonable time hence the Corporate debtor's contention does not sustain - On perusal of the invoices and the shipment delivery proof, the Corporate Debtor has failed to raise dispute in respect of the quality of goods despite the emails demanding payment of monies. The said materials were supplied in the year 2016. However, the dispute raised is only after this Application is filed. The Corporate debtor has defaulted in making payments to the Applicant on the respective due dates as mentioned in the Application and has failed to establish the existence of a bonafide dispute prior to the receipt of Demand Notice - It is established that the Corporate Debtor has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.10.2016 24.12.2016 76,529.61 5 2016764 dated 27.10.2016 26.01.2017 364,180.47 6 2016795 dated 08.11.2016 07.01.2017 304,416.00 7 2016803 dated 09.11.2016 08.01.2017 398,716.40 8 TOTAL INVOICE AMOUNT 2,222,420.99 4. The Applicant sought payment of USD 2,420,319 in its Letter dated 28.07.2017 attached to the email dated 31.07.2017 issued by the Applicant to the Corporate Debtor. Copy of the email along with attached letter dated 28.07.2017 is annexed to the Application. 5. The Applicant issued Demand Notice dated 14.06.2018 under section 8 of I B Code, 2016 claiming a default of USD 2,222,420.99 being the balance amount payable under 7 invoices raised against supply of rough diamonds. The Corporate Debtor has made part payments under the invoices. Copies of the Demand Notice and proof of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor that the Applicant's agent requested the Corporate Debtor to at least polish the rough diamonds and hold the goods until the Applicant finds the buyers to purchase the polished diamonds or to then return the same, upon payment of the Corporate Debtor's professional charges. 14. The Counsel for the Corporate Debtor drew the attention of this Bench to the invoices and pointed out that in the invoices it is clearly written that title to the goods invoiced herein will not pass from seller to the buyer until the buyer has paid for the goods in full including applicable expenses 15. It is submitted by the Corporate Debtor that it is ready, willing and able to return the diamonds to the Applicant on the payment of Corporate Debtor's professional charges. 16. It is further argued by the Corporate Debtor that the Reply to Demand Notice has clearly sought for information relating to the purchase orders and other information as there is no operational debt. 17. Subsequently Rejoinder and Sur-Rejoinder have been filed by the parties to this Application. Thereafter both the parties have filed written submissions. 18. We have heard the parties and per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .17. 26. The Applicant in the Rejoinder pointed out in para no.14 that the contents of paragraph no.8 and 15 of the Reply are mischievous as the offer of the Corporate Debtor to return the diamonds in original form cannot be accepted as it was never engaged to render services of polishing rough diamonds. Further, the rough diamonds have changed form and it is impossible to identify and distinguish the diamonds supplied by the Applicant. 27. On perusal of the invoices, letter dated 26.07.2018 of ABN AMRO Bank N.V Belgiam Branch showing the monies received by the Applicant from the Corporate Debtor, Several follow up emails demanding payment of monies mentioned supra, it is established that the Applicant has supplied rough diamonds to Corporate Debtor. The receipt of which is not denied by the Corporate Debtor. The existence of 'operational debt' as per the provisions of the Code is established. 28. The Corporate Debtor has not denied the transactions with Applicant in the Reply to Demand Notice under section 8 of I B Code, 2016. The Corporate Debtor has in fact sought for relevant documents in respect of the supplied diamonds. However, strangely, in the Reply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as mentioned in the Application and has failed to establish the existence of a bonafide dispute prior to the receipt of Demand Notice. In this regard, it is imperative to mention that the decision in Mobilox Innovation Private Limited v. Kirusa Software Private Limited, AIR 2017 SC 4532, wherein, the Hon'ble Supreme Court has elaborately dealt with what amounts to 'dispute' under the code. The relevant para is extracted herein below. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. II. That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. III. That the provisions of sub-section (1) of Section 14 of I B Code shall not apply to - (a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (b) A surety in a contract of guarantee to a Corporate Debtor IV. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of I B Code or passes an order for the liquidation of the corporate debtor under section 33 of I B Code, as the case may be. V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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