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TMI Blog2020 (3) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... . Agarwal being a Proprietor. The Operational Creditor is stated to be involved in 'Steam Coal' business. The office of Operational Creditor firm is situated at: 65, East High Court Road, Ramdaspeth, Nagpur - 440010, Maharashtra., India. 2. The brief particulars about the Respondent/Corporate Debtor Company, namely M/s. Decore Exxoils Pvt. Ltd. are that the company was incorporated on 25.11.1997 with the CIN: U15141MP1997PTCO12474 and is said to be engaged in the business of food products. 3. Itis informed that the Corporate-Debtor-Company is having nominal share capital of Rs. 22,00,00,000/- (Rupees Twenty-Two Crores) and the paid-up share capital of the company is Rs. 21,57,20,000/- (Rupees Twenty-One Crore Fifty-Seven Lakh Twenty Thousand). The registered office of the Corporate Debtor Company is situated at: Office Block1 A, 5' Floor, DB City, Corporate Park, Area Hills, Opp. M.P. Nagar, Zone-1, Bhopal - 462016, Madhya Pradesh, India. 4. It is submitted that the Corporate-Debtor-Company, i.e. M/s. Decore Exxoils Pvt. Ltd. made request to the Petitioner, i.e. M/s. Oriental Coal Corporation for supply of 'Steam Coal,' for which, the Corporate-Debtor also sent a Purchase-Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Corporate Office and Factory/Works address of the corporate debtor. The same is also reported to have been returned undelivered. The copies of speed post acknowledgement along with the track report of the notice returned undelivered have been annexed with the present petition. 12. The Petitioner submits that the total amount of debts which has been defaulted is to the tune of Rs. 19,93,848/- (Rupees Nineteen Lakhs Ninety-Three Thousand Eight Hundred Forty-Eight) as on 12.03.2018. Out of which, a. Rs. 9,63,808/- (Rupees Nine Lakh Sixty-Three Thousand Eight Hundred Eight) is the principal amount receivable towards the issued invoices. b. Rs. 10,30,040/- (Rupees Ten Lakh Thirty Thousand Forty) is the amount receivable towards the interest on delayed payments outstanding on issued invoices. 13. The petitioner furnished the details of invoice-wise and date wise amount in respect of the Corporate-Debtor, which are described as under:- Sr. Invoice No. Amount (Rs.) Invoice Date 1 69(Invoice- 1) 15,66,482/- 15.12.2013 2 47 (Invoice-2) 6,79 ,993/- 19.12.2014 14. In response to the present I.B. Petition, the Respondent/Corporate Debtor, i.e. M/s. Decore Exxoils Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total outstanding remains of Mandideep Unit Rs. 6,31,152/- against which, Rs. 1,72,670/- was to be credited from Nagpur Unit which Operational Creditor has not given any credit. Further, Respondent has raised debit note of Rs. 4,58,482/- as such if above two amounts credited into the account of Corporate Debtor then nothing can be found due and payable by the Respondent. 20. It is submitted that in order to substantiate Respondent's version of supply of goods of poor quality by the Petitioner, the Respondent got done coal analysis test from a certified lab. The report thereof has been enclosed and marked as Annexure WS-1. 21. The corporate debtor by filing an additional document has provided a copy of debit note dated 16.11.2015 raised by it, which has been made towards deduction of amount on account of inferior quality of 419.805 MT coal supplied. During the period of June 2014 to March 2014. Such debit note is supported by a copy of coal analysis report that reflects that the steam coal supplied in question, and the subject matter of present IB petition have been found of inferior quality. As per the report such lab tests were carried on 06.01.2014 which goes to show that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner. 24. In support of its contention, the Corporate Debtor has filed an affidavit of its Director Mr. Rajiv Chaturvedi who has deposed that Mr. Devkar Rage was appointed as a Chief Manager (Cost Analysis) only on 01.08.2015, while, he is said to have sent such balance confirmation email very promptly on 05.08.2015. Such attracts serious controversy being disputed question of facts on authenticity and validity of such email. Hence, such cannot be treated as conclusive document of confirming the balance nor such letter/email can be purported to be a valid acknowledgement of debt liability under the provision of Section 18 of the Indian Limitation Act. 25. The Hon'ble NCLAT in its decision in the matter of C. Shivakumar Reddy Vs. Vs. Dena Bank decided on 18.12.2019 has pleased to hold that even confirming of the loan in the annual balance sheet of the Corporate Debtor Company cannot be treated as acknowledgement of loan under Section 18 of the Limitation Act. For the convenience, the same Para is reproduced here in below: "10. Similar issue fell for consideration before the Hon'ble Supreme Court in "Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench on 09.05.2018. The Legal position in this regard had been well settled by the Hon'ble Supreme Court in the matter of Vashdeo R. Bhojwani Vs. Abhyudaya Co-operative Bank Ltd. & Ors. Civil Appeal No. 11020 of 2018, Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd. and Ors. decided on 18.09.2019 and Sagar Sharma Vs. Phoenix ARC (P.) Ltd. wherein, their Lordships have pleased to reiterate its stand as ruled earlier in its decision in B.K. Educational Services (P.) Ltd. Vs. Parag Gupta. Hence, it is held that the present I.B. Petition is hit by Limitation Act, thus, not maintainable. 27. We further examined the issue of the Pre-Existing Dispute in the present matter. It is evident that the Corporate Debtor has raised Debit Note on 16.11.2015 and also got tested the quality of steam coal supplied. Further, the Petitioner in its petition in Colum part4 (1)(b) Bullet Point No. (7) has stated that it made quite delayed payment on 25.11.2014. Such payment was received after rigorous follow up by the Operational Creditor. Thereafter, the Corporate Debtor did not even make a single payment to the Operational Creditor. Therefore, such raise prima-facie doubt about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act. xxxxxxx 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5}(2X) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must being to the notice of the operational creditor the "existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties 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. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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