TMI Blog2021 (5) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be. Thus, it is evident that there is a genuine dispute between the parties and the defence raised by the Corporate Debtor on the grounds of existence of a dispute is real and not spurious, hypothetical, illusory or misconceived - Application dismissed. - IBA/1414//2019 - - - Dated:- 21-4-2021 - R. Sucharitha, Member (J) And B. Anil Kumar, Member (T) For the Appellant : V. Prasanth Kiran, Advocate For the Respondents : Thriyambak J. Kannan, Advocate ORDER R. Sucharitha, Member (J) 1. Under consideration is an application fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Operational Creditor No. 1 duly supplied the materials as per the Sales Confirmation (contracts) and the same was accepted without demur by Corporate Debtor. Accordingly, Operational Creditor No. 1 issued invoices from time to time as per the terms of the sales confirmation contracts. Despite repeated assurances to clear the outstanding operational debt of USD 326,725 exclusive of interest due and payable to Operational Creditor No. 1, the Corporate Debtor defaulted in making payments. Thereafter, the Operational Creditor No. 1 sought indemnification of the outstanding on unpaid invoices from its Insurer i.e. Operational Creditor No. 2 under Insurance Policies bearing No. 2018-2-187. It is stated that invoice nos. 9808, 9830, 9845, 9888 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l dated 01.11.2018 from the Operational Creditor No. 1 to Operational Creditor No. 2 incorporating the communication between Managing Director of Corporate Debtor and Export Manager of Operational Creditor No. 1 admitting to the liability on the part of Corporate Debtor. The material contents of the email dated 16.10.2018 are reproduced herein below: I feel very bad for the delay of our payments which is unintentional and please believe us we will make these payments and please support the business as it is only a temporary phenomenon due to Trump effect.... 8. On 19.09.2019, the Operational Creditors sent demand notice in Form-3 under Section 8 of the IBC, 2016 demanding payment of an unpaid operational debt due from the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials that was supplied by the Operational Creditor No. 1, the Corporate Debtor had raised debit notes towards detention and demurrage charges between the period 17.12.2018 to 26.12.2018. In fact, these debit notes were raised well before the issuance of the demand notice which was sent on 19.09.2019. Hence, the present petition is hit by the issue of a preexisting dispute insofar as the nine invoices are concerned. 12. The Operational Creditors in their Rejoinder, have averred that the materials supplied pursuant to the Invoice Nos. 9508, 9544, 9558, 9584, 9606, 9808, 9803, 9845, 9888 had the same specification as the material supplied and accepted without demur by the Corporate Debtor during the period 2018-2019 and never disputed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Department are Invoice Nos. 2006 and 2016 raised by MPT (Shanghai) Trading Co. Ltd. also not reflect the invoice Nos. 9584 and 9606 as raised by the Operational Creditor No. 1. The petitioner has not produced evidence to the effect that invoice Nos. 9584 and 9606 had cleared customs. Hence, it is clear that Invoice Nos. 9584 and 9606 as raised by Operational Creditor No. 1 are mere duplications of Invoice Nos. 2006 and 2016 raised by MPT (Shanghai) Trading Co. Ltd. and does not pertain to the Respondent/Corporate Debtor. 14. Heard the submissions made by the Learned Counsel for both the parties and perused the records including the pleadings placed on record. Thus, a conjoint reading of all the e-mails exchanged between the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute and/or the suit or arbitration proceeding must be preexisting i.e. it must exist before the receipt of the demand notice or invoice, as the case may be... At paragraph 51 it is held: 51. .......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 argument or an assertion of fact unsupported by evidence. 16. Thus, it is evident that there is a genuine dispute between the parties and the defence raised by the Corporate Debtor on the grounds of existence of a dispute is real and not spurious, hypothetical, illusory or misconceived. 17. Under the circumstances, by taking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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