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TMI Blog2021 (2) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... umber being 410100000008595 (New Number: 141013782208091T) having its registered office at 96, Middle of Hanghai Road, Zhengzhou, Henan China. 3. The Respondent Sunil Healthcare Limited is a company incorporated on 05.02.1973 under the Companies Act, 1956 having its registered office at 38E/252 A, 1st Floor, Vijay Tower, Shahpurjat, New Delhi-110049 and CIN L24302DL1973PLC189662 is engaged in the business of manufacturing man-made fibers which includes manufacture of artificial or synthetic filament and non-filament fibers. 4. The Applicant herein the Operational creditor had supplied varied quantities of Pharmaceutical Grade Gelatin to the Corporate Debtor/ the terms and conditions of such supply was that the payment of the goods so supplied was to be made on the basis of Open account 45 days after Bill of Lading date. The goods were supplied by the Operational Creditor in tranches. The said goods were supplied in accordance with the arrangement between the parties vide sales contracts bearing no 18BOOMG004 dated 25.01.2018, contracts bearing no 18BOOMG028 dated 05.0.2018 and contracts bearing no 18BOOMG029 dated 07.03.2018. The Operational Creditor raised its invoices bearing n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent to clear its dues as per the commercial terms, agreed between the parties". The Applicant states that the total amount in default is USD 3,77,392.00 which is equivalent to Rs. 2,63,22.110.78/-considering the exchange rate of Rs. 69.75/- per INR 1. The Applicant has not complied with the requirement of the Section 9(3)(c) stating that the Hon'ble Apex Court in its Judgment dated 15.12.2017 in Macquarie Bank Limited Versus Shilpi Cable Technologies Limited has stated that Bank Certificate is not required. 8. The Applicant has therefore filed this Application under Section as an Operational Creditor praying for- initiation of Corporate Insolvency Resolution Process of the Corporate Debtor for its inability to liquidate their claim of USD 3,77,392.00. Further a notice was issued to the Corporate Debtor vide order dated 27.05.2019 of the Adjudicating Authority and the reply to the Section 9 application was filed by the Corporate Debtor as on 09.07.2019. The Corporate Debtor states that the Application is liable to be dismissed at the threshold since Form 5 is incomplete. The Operational Creditor has omitted to specify and mention the proposed IRP. Further it is stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CEO of the Corporate Debtor to the Applicant vide email dated 30.07.2018, which was acknowledged by the Applicant vide its email on the same day. 11. The Corporate Debtor further states in its reply dated 03.02.2020 that the Applicant has filed this present application without disclosing the current continuing commercial relationship, between the Applicant and the Corporate Debtor. It was submitted that despite the outstanding debt mentioned in the Application the Operational Creditor has directly through his own personal involvement effected shipments of worth USD 4,41,000 to Corporate Debtor which has been adjusted against the alleged disputed Invoices which establishes that even after shipment of Invoice raised at pre dispute stage, the Operational Creditor had made direct supply of three shipment and Business Transactions entered post the dispute stage amounting to a total value of USD 4,41,000 and all payment to the Operational Creditor were made through LC. 12. The Corporate Debtor submits that the Operational creditor failed to disclose that due to repeated qualitative issues and delay in supply/ dispatch of gelatin to the Corporate Debtor herein, had consequentially resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 relation to such dispute?" If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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