TMI Blog2017 (11) TMI 1944X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts revealing previous transactions between the parties, which were not disclosed by the applicant at the first instance. It is seen from the reply and rejoinder that there had been business transactions between the parties comprised of reciprocal demands on account of sales and purchases made inter-se, since the year 2010. Litigants must observe total clarity and candour in their pleadings as wheels of justice can move only on true facts. However the applicant has initiated the application without full disclosure of facts at the first instance - In view of the aforementioned particulars the claim of reciprocal transactions on account of sales and purchases made inter-se, between the parties cannot be overlooked. Accordingly, the dispute raised by the Respondent on the claim of principle amount and interest cannot be termed as sham and illusory. Admittedly there has been no admission of the claimed operational debt by the respondent. On the contrary there has been a counter-claim by the respondent. It is further seen that there has been reciprocal transactions between the parties long since the year 2010 and dispute certainly exists in the facts of the case much prior to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SIT 37,97,550/- 2 23/10/2015 62 35,06,204/- 3 24/10/2015 63 35,09,715/- Total 1,08,13,469/- The firm had also issued six debit notes on various dates as detailed in the application between the period from 31.10.2015 to 31.10.2015 for a total sum of ₹ 84,77,759/- towards interest to be paid by respondent on the principal amount. 5 . It is submitted that J.P. Engineers, partnership firm was taken over by the applicant company, J.P. Engineers Private Limited on 4th November, 2016. Accordingly it is claimed that the applicant company is legally entitled to receive the aforementioned principal amount and interest from the respondent corporate debtor. Copies of aforesaid three invoices in respect of the principal amount and six debit notes towards interest to be paid by the respondent on the principal amount have been placed on record. 6 . The Respondent Company has filed its reply on 09.10.2017 and raised various objections. It is submitted that the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndirapuram Ghaziabad-201 014 The concluding part of Form 3, however, is clearly at variance, which is as follows: ------------- 5. The undersigned, hereby, attaches a certificate from an information utility confirming that no record of a dispute raised in relation to the relevant operational debt has been filed by any person at any information utility. (if applicable) 6 . The undersigned request you to unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate insolvency resolution process in respect of [name of corporate debtor]. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing 9. At para 5 and 6 of the notice the use of words 'the undersigned, hereby, attaches' and 'the undersigned request you' respectively refers to the operational creditor or any other person authorised to act on his behalf. However in the impugned demand notice the use of the said words clearly refers to the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasers at some point in time and each of the parties owed some amount of money at some point in time. It is emphasised that these facts have not been disputed by the applicant in their rejoinder. 13. Further it has been submitted by the respondent that the petitioner had earlier lodged a FIR bearing No. 845/2016 and a closure report dated 21.12.2016 has been filed wherein after investigation it was stated that the respondent has deposited excess amount of ₹ 3,60,623/-, in the accounts of the applicant. 14. It is also contended that there are sufficient records of business transaction between the parties with confirmation of accounts issued by the applicant itself for the period 01.04.2011 till 31.03.2015 wherein it is categorically stated that there were reciprocal demands and there was no agreement and/or understanding for charging any interest. Respondent has also filed ledger accounts pertaining to transaction upto 31.10.2015 with the contention that after 01.04.2015 the Petitioner made purchases from the Respondent for a sum of ₹ 12,44,70,409/- and made on account payments and eventually as on 06.10.2015, after settling all accounts in full final settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was filed along with original application nor there was any material to demonstrate the previous transactions nor were there any agreement and/or understanding in support of payment of interest. In this scenario the amount of interest, as specifically claimed in the application (Form-5), is not free from dispute. 18. It is also pertinent to mention here that respondent company has filed relevant ledger accounts revealing previous transactions between the parties, which were not disclosed by the applicant at the first instance. It is seen from the reply and rejoinder that there had been business transactions between the parties comprised of reciprocal demands on account of sales and purchases made inter-se, since the year 2010. Litigants must observe total clarity and candour in their pleadings as wheels of justice can move only on true facts. However the applicant has initiated the application without full disclosure of facts at the first instance. 19. The Respondent has submitted that the applicant has concealed the fact that even after the invoice dated 27.07.2015 raised by the applicant, the applicant has purchased materials from Respondent Company Vide following invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er conciliation of accounts. The accounts in question are complex running accounts long since the year 2010. There is thus confusion about the actual amount of default of debt. In such financial dealings continued long since the year 2010, existence of dispute cannot be ruled out particularly when the amount claimed in the ledger account has been disputed for long. Alleged liability has been disputed from time to time for which parties had also met to trash out the differences. There had been demands to reconcile the accounts. The applicant has itself attached in its rejoinder an e-mail dated 31st December 2015 in which the applicant had tried to settle the matter with respondent which indicates that there have been some issues between the parties regarding payments since long and which requires a complete trial and investigation in respect of the respective claims of both the parties. 21. The applicant has tried to justify his claim by filing the relevant account statements from the Financial Year 2011-2012 till October 2017. It is however pertinent to state that this is not the forum to examine and adjudicate as to which portion of the claims and counter claims are admissible. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
