TMI Blog2021 (7) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Operational Creditor, causing a loss of USD 60030 to the Corporate Debtor establishes that the Operational Creditor was aware of the dispute prior to issuance of Demand Notice dated 01.11.2017. A pre-existing dispute does not entitle the Operational Creditor to seek Insolvency Resolution of the Corporate Debtor. This Bench is of the view that the prayer for initiating Corporate Insolvency Resolution process against the Corporate Debtor is not sustainable - Application disposed off. - Company Petition No. IB-1294/ND/2018 - - - Dated:- 5-7-2021 - Dr. Deepti Mukesh, Member (J) And Sumita Purkayastha, Member (T) For the Appellant : Kanwal Chaudhary, Adv. For the Respondents : Rahul Jain, Adv. ORDER Sumita Purkayastha, Member (T) 1. The present application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'code') read with Rules 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), 2016 (for brevity 'the Rules') by Abdos Polymers Limited (for brevity 'Applicant') through Mr. Sunil Kumar Gupta (Manager-Finance accounts in the Applicant Company) with a prayer to initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the mandatory provisions of Section 9(3)(b) and (c) of the Code. 7. The Applicant filed this application dated 24.09.2018 as an Operational Creditor praying for initiation of Corporate Insolvency Resolution Process of the Corporate Debtor for its inability to liquidate their claim of ₹ 14,18,462/- towards unpaid invoices for the goods supplied by the Operational Creditor. 8. Notice with respect to the application was issued to the Corporate Debtor vide order dated 11.10.2018 of the Adjudicating Authority. The Adjudicating Authority directed the Applicant to serve the application to the Directors at the factory address vide order dated 13.11.2018. Further the Applicant was directed to serve the copy of the order to the Corporate Debtor through email vide order dated 13.12.2018. On non appearance of the Corporate Debtor before the Adjudicating Authority, the Corporate Debtor was proceeded ex-parte vide order dated 02.01.2019. Further the order was reserved by the Special Principal Bench and pronounced on 15.02.2019 as: 1. Against the same Corporate Debtor, NCLT, New Delhi Bench (Court No. IV) have admitted another petition namely M/s. Jaswant International Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Corporate Debtor in (IB)-1060(ND)/2018 and intimating the present applicant to pursue any remedy available to it under the law. Hence the application CA No. 475/ND/2019 seeking revival of the captioned petition IB-1294/ND/2018 was allowed on 25.10.2019 and Notice was issued to the Corporate Debtor. 10. The Corporate Debtor filed its reply dated 24.11.2019 and submitted that there is a pre-existing dispute between the Operational Creditor and the Corporate Debtor. The Corporate Debtor has submitted that the Operational Creditor supplied sub standard products during the year 2014-2015. The Corporate Debtor vide email dated 07.08.2014 stated that the goods (PP sacks) supplied by the Operational Creditor did not meet the specification prescribed by the Customers. Subsequently vide email dated 27.03.2015 the Corporate Debtor informed the Operational Creditor that out of the total quantity of the goods (PP sacks) supplied approx 4.23% comes as a wastages and the Operational Creditor was requested to visit the Corporate Debtor's factory for verification of the same. Despite raising a concern the Operational Creditor failed to take any steps to rectify the same. Thereafter, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be (Section 8(1)). Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)). What is important is that the existence of the 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......... 34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:...... (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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