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TMI Blog2017 (10) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the territorial jurisdiction of this Tribunal. It has a paid-up capital of Rs.64,13,95,520/-. The application has been filed by the petitioner-company through Mr.Pravin Gupta, Director of the company in whose favour the company has passed resolution dated 25.07.2017 as at page 254 of the paper book. There is another resolution at page 255 of even date authorizing Mr.Vivek Dalal, Advocate to represent the company, to issue demand notice and also to file petition for initiating insolvency resolution process against the respondent-corporate debtor. The contents of the application are supported by affidavit dated 21.08.2017 of Mr. Pravin Gupta aforesaid. 3. It is averred that the respondent placed purchase order dated 23.09.2016 for the purchase of 7,20,000 PP Bags (specification - 150 grams Mass of Sack with liner) for a total amount of Rs.1,07,28,000/- excluding taxes and another order dated 02.11.2016 for 10,200 PP Hot sealing bags for a total consideration of Rs.3,58,938/-. In terms of these purchase orders, the operational creditor dispatched the goods to the corporate debtor vide seven invoices given at Sr. No. 1 (c) of Part-IV of the application as under:- Date Quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay. The last invoice was issued on 08.12.2016 which is stated to be the date on which the default occurred. 7. The petitioner sent demand notice dated 25.07.2017 apparently in Form No. 3 as required by Rule 5(1)(b) of the Rules. The notice along with documents has been attached from page 8 to 40 of the Paper Book. The dispute pertains to 7 invoices with respect to supplying 3,30,200 bags. In the demand notice, there is mention of invoice Nos. 198,222, 224,245, 246,259 and 291 out of which the amount in respect of invoice Nos. 198, 245 and 222 was paid whereas for rest of the invoices, the payment was not made for which the value comes to Rs.30,15,548/- and the respondent is stated to have admitted the default. Along with this demand notice, the petitioner sent copy of the ledger account of the respondent being maintained by the petitioner showing the outstanding balance along with copies of four disputed invoices and also the CST form sent by the respondent in respect of the entire consignment of seven invoices. The copies of e-mails exchanged between the parties were also sent. 8. This demand notice dated 25.07.2017 was sent by speed post as per postal receipt at page 41 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther. Thereafter, the petitioner wrote a threatening e-mail dated 12.06.2017 to the respondent-corporate debtor to release the payment immediately, else the operational creditor shall raise the issue before various authorities and also the trade bodies and that e-mail is relied upon by the petitioner-operational creditor at pages 62 and 63 of the Paper Book. 13. With regard to Form C, it is stated that the settlement alleged by the petitioner is misplaced, illusory and not maintainable since the operational- creditor had supplied substandard goods for which the corporate-debtor suffered losses. The same was communicated to the operational-creditor vide e-mail dated 20.03.2017 much prior to the issuance of demand notice. The corporate-debtor suffered heavy losses and damages for which the amount has been quantified at Rs.1,34,99,054. 14. I have heard the learned counsel for the parties and carefully perused the record with their able assistance. 15. In order to comply with the requirement of Section 9 (3) (c) of the Code, the petitioner has attached certificate from the Bank of India dated 24.08.2017 which contains the payments received till date from the respondent-corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub- section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if - (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 grams as given at page 247 of the Paper Book. 23. Learned counsel for the respondent also referred to e-mail dated 22.11.2016 sent to the petitioner annexed at page 236 of the petition which states that the respondent is getting quality complaint on account of strength in recent supplies and matter is very serious. It was, therefore, requested to depute the representative of the petitioner to the unit of the respondent and to take corrective measures. At page 237 is the information dated 23.11.2016 on the basis of analysis report dated 22.11.2016 which was showing less weight of various PP Bags, weight of some of which is even less than 144 grams, 142 grams and 140 grams etc. This report pertains to invoice No. 259 in respect of 30,000 No. of bags. This is one of the invoice for which the payment was not made by the respondent. It is contended that this was the random checking in which this defect regarding less weight was found in the quality of the bags in comparison to the required specifications. Vide e-mail dated 23.11.2016 at page 240, it was intimated to the petitioner that as per quality check report, S2 bag lot was rejected. 24. Learned counsel for the respondent also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erary about the visit of the representative. With the e-mail dated 28.03.2017 at page 209, the respondent sent debit note calculations to the petitioner. 27. There is also an e-mail dated 07.06.2017 at page 204 of the paper book, before the issuance of demand notice. In this e-mail, it was stated that the respondent had been requesting the petitioner to visit Rajgoli Unit of respondent to have a look. It is further intimated in this e-mail that the damage percentage which they mentioned in all the earlier communications was 10 to 11%, but when they started rebagging, the respondent found more than 70% damaged bags in M Grade Sugar bags. 28. There is a response to this e-mail dated 07.06.2017 (page 204 of the paper book) itself wherein the petitioner intimated that the mother of Pravin Gupta, the authorized representative of the petitioner, was unwell because of which the visit of petitioner's representative was not possible. In the meanwhile, request was made for making the payment. 29. At page 203 is e-mail dated 12.06.2017 sent by the petitioner to the respondent in which it was stated that the respondent is prolonging the matter unnecessarily and putting the petitioner under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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