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TMI Blog2019 (12) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... said default committed on 31-3-2018. However, the corporate debtor has failed to repay the amount in question so far. 2. The averments made in the petition are as follows: 2.1 The default in question has been committed on 31-3-2018 by the corporate debtor. The corporate debtor has acknowledged receipt of the defective goods by its various communications and has issued credit notes, copies of which are placed at pages 14 onwards (ANNEXURE IV COLLY.) to the petition. The petitioner/operational creditor has issued Demand Notice dated 17-6-2019, in Form No. 3 (ANNEXURE II, page 8 to the petition) claiming repayment of operational debt to the tune of Rs. 5,52,944/-. 2.2 When issuance of Demand Notice dated 17-6-2019, repeated requests made by the petitioner/operational creditor and institution of recovery suit did not yield any result and the corporate debtor has not repaid the amount in question so far, the petitioner/operational creditor has filed the present petition under section 9 of I&B Code. 3.Counter by the Respondent dated 13-11-2019: 3.1 The respondent/corporate debtor has filed Counter Affidavit contending that application under section 9 of the I&B Code, 2016 is not ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Hence it is submitted by the respondent/corporate debtor that,- (a) the present case neither falls under operational debt nor attracts the provisions of Goods and Services Tax Act; and (b) Neither the petitioner is operational creditor nor its claim is operational debt. 3.6 The respondent/corporate debtor, in para 9 of the Counter Affidavit, claims that it is the operational creditor, who is supposed to be the supplier of goods or provider of services and not the corporate debtor. In the present case the petitioner/operational creditor has assigned reversal of roles to the parties. Therefore, the petition is misconceived. 3.7 In para 10 of the Counter Affidavit the respondent/corporate debtor raises a technical plea that the documents supplied to it are not legible and seeks directions of this Tribunal to the petitioner/operational creditor for supply of legible copies. 3.8 On the above grounds the respondent/corporate debtor contends that the present petition filed under section 9 of the I&B Code, 2016 is not maintainable and is required to be rejected. 4.Written submissions filed on 17-12-2019 by the Petitioner The PCS for the operational creditor has filed Written S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 144 SCL 37, to contend that the Hon'ble Supreme Court has held that the pending suit must relate to bona fide dispute and not just any suit filed before a court. The Adjudicating Authority has to decide whether the dispute raised is bona fide and the corporate debtor has informed existence of dispute to the operational creditor after receipt of notice under section 8 (sic.) of the I&B Code. The petitioner has also contended that pendency of a suit before the Sessions Court, Nagpur has no bearing to the proceedings under I&B Code. 5. Heard the PCS for the petitioner/operational creditor and the counsel for the respondent/corporate debtor. 6. The respondent/corporate debtor has filed a compilation of judgments on 28-11-2019, whereby the following decisions are relied on: (i) Order dated 8-3-2018 in Kanti Commercials (P.) Ltd. v. Belthangady Taluk Rubber Growers Marketing & Processing Co-operative Society Ltd. [2018] 147 SCL 346 (NCL - AT). (ii) Order dated 11-11-2019 in Ashoke Ghosh v. Ranjan Kumar Sovasaria [2020] 157 SCL 516 (NCL - AT). (iii) Order dated 24-7-2019 in Company Petition No. IB-27/PB/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor and as such the petitioner does not come under the definition of 'the operational creditor' and also the amount involved does not come under the definition of 'operational debt'. 10. It is an undisputed fact that the operational creditor and the corporate debtor entered into an agreement of distributorship dated 3-4-2017. The petitioner is a distributor of the goods supplied by the corporate debtor. The petitioner is selling the product of the corporate debtor. Thus, the petitioner is rendering service to the corporate debtor. It cannot be said that the petitioner does not fall under the definition of 'the operational creditor'. The petitioner is a distributor for the goods supplied by the corporate debtor. It is nothing but a kind of service being provided to the corporate debtor in respect of the goods produced by the corporate debtor and the goods are being sold through the operational creditor. We, therefore, do not agree with the contention of the learned counsel for the corporate debtor that the petitioner does not fall under the definition of 'the operational creditor' and the amount also does not fall under the definition of 'oper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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