TMI Blog2019 (5) TMI 1881X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to issuance of demand notice. That, there are/were no communication or evidence on record to establish goods supplied by the corporate debtor were of inferior quality. It is evident that the corporate debtor has agreed to clear the principal outstanding amount and has tried to settle the issue amicably but the applicant was reluctant. That, it will be open to the applicant to move before a court of competent jurisdiction for realisation/recovery of their dues instead of initiating resolution process which will have adverse effect on a going concern - That, keeping in mind the basic objective of the IB Code as also considering the fact that the respondent company is a going company and initiation of insolvency process will adversely a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Powder to the corporate debtor against various invoices issued from time to time. Further, there has been repeated request and reminder by the applicant company for payment of the outstanding operational debts of ₹ 17,48,135/-, however, inspite of the same, partial payment of only ₹ 2,75,000/- was received from the corporate debtor. 5. The applicant has further submitted that a demand notice under form No. 3 in accordance with Rule 5 of the Adjudicating Authority Rules was delivered on 14.03.2018 to the corporate debtor for payment of outstanding operational debt of ₹ 18,70,881/- (Rupees eighteen lacs seventy thousand eight hundred eighty-one only) including interest of ₹ 3,97,746/- calculated @ 24% per annum fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r relied upon the decision of the Hon'ble Supreme Court in the matter of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited (Civil Appeal Nos. 9405/2017) held that Adjudicating authority must determine whether there is a plausible contention which requires further investigation and that the term dispute is not a patently feeble legal argument or an assertion of fact not supported by evidence. Relevant para 44 of the said judgment is reproduced herein below:- 44. It is clear, therefore, that once the operational creditor has held 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forms 12-74 03 Ledger statement of the corporate debtor account as maintained by the operational creditor 75-76 04 Invoice/demand notice as in form No. 3 77-147 05 Reply under Section 8 (2) of the Code given by corporate debtor pursuant to demand notice 148-149 06 Working of computation of default 150 07 Bank certificate obtained under Section 9 (3) of the IB Code from Bank where operational creditor usually received payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 13. To decide the issue, it is desirable to refer to the decision of Hon'ble NCLAT in the matter of Binani Industries Limited vs. Bank of Baroda Anr. in Company Appeal (AT) (Insolvency) No. 82 of 2018 dated 14th November, 2018 which reads as under:- 17. To decide the issue, it will be desirable to notice the object of the I B Code; object of 'Resolution' and what is expected from the Committee of Creditors; as summarized below: 1. The Objective of the I B Code As evident from the long title of the I B Code, it is for reorganisation and insolvency resolution of corporate persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without entering into any confrontation, immediately after earlier discussion between the parties, the respondent had tendered cheques aggregating to ₹ 18,73,135/- being entire principal amount and also confirmed that the same shall be cleared upon depositing with the bank. That, the respondent has filed Xerox copy of said cheques along with the reply to show his bona fide. That, during the course of hearing, on 01.03.2019, by way of affidavit, learned lawyer appearing on behalf of respondent submitted that they had issued cheques in favour of the petitioner against the total principal outstanding but the same has been refused by the petitioner. That, during the course of hearing also the corporate debtor made efforts for an amicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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