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TMI Blog2022 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... Submissions of Operational Creditor and Corporate Debtor: 1. Operational Creditor has submitted in Part IV of Form-5 of its application that the Corporate Debtor had approached the Operational Creditor sometime in the year 2016 for several construction related works. Thereafter, after several discussions and meetings the quotes for the scope of work was finalized. It is further submitted that thereafter the Corporate Debtor placed a work order dated 11.11.2016 and the Operational Creditor supplied the said material and completed the construction work within stipulated period. Thereafter, the Corporate Debtor had further placed work orders. The Corporate Debtor had placed 16 work orders with the Operational Creditor. Copies of the work order is annexed as Annexure-D to this petition. 2. It is submitted that thereafter, from time to time the Operational Creditor has raised various invoices on various occasions amounting to an aggregate value of Rs. 1,37,35,249/- (Rupees One Crore Thirty-Seven Lakhs Thirty-Five Thousand Two Hundred and Forty Nine only). Copies of the invoices are annexed collectively as Annexure-E to this petition. 3. It is further submitted that the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directors namely Mr. Gopal Prasad Choudhry, submitted that the application is not maintainable either in law or in the on facts of the Case. The application is thoroughly misconceived, false, frivolous, vexatious, baseless and not tenable in the eyes of law. It is further submitted by the Corporate Debtor that the application is not in proper form and hence, not maintainable as per provisions of the Insolvency and Bankruptcy Code, 2016. 10. In the reply affidavit filed by Corporate Debtor number of preliminary objections have been raised. 11. On behalf of Corporate Debtor, during arguments and in written notes submitted, much emphasis has been laid on preliminary objection regarding pre-existing disputes as a ground for rejection of this application. 12. It is also submitted by that Operational Creditor from time to time raised invoices upon the Corporate Debtor. The Corporate Debtor in good faith, from time to time has made payments of a sum of Rs. 59,25,907/- to the Operational Creditor against the aforesaid invoices. Documents evidencing the factum of payment made by the Corporate Debtor to the Operational Creditor against the aforesaid invoices are annexed as Annexure-B. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of the respondent to forfeit the payment of the alleged dues against the invoices which have been raised by Operational Creditor. 19. It is submitted that as stated earlier, so far, the Corporate Debtor has already incurred an expense of Rs. 26,49,776/- for rectifying a part of the defective work done by the Operational Creditor, as per particulars given in a Schedule is annexed as Annexure-E. The rectification work is ongoing, and substantial further expenses will have to be incurred by the Corporate Debtor for completing the defective work as also for carrying out the unfinished work done by the Operational Creditor. At present, the Corporate Debtor reasonably estimates a further expenditure of over Rs. 20,00,000/- in this regard. Had it been a genuine claim of the Operational Creditor, the Corporate Debtor would have paid the same. The Corporate Debtor is a solvent concern enjoining substantial goodwill in the market. Copies of the last two published audited accounts of the Corporate Debtor are annexed collectively as Annexure-F. 20. That it is submitted that the aforesaid expenses have been incurred and further expenses will be incurred by the Corporate Debtor at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said application, in the said circumstances, is not maintainable and the same ought to be dismissed. 26. Rejoinder has also been filed by the applicant, wherein the contentions of the Corporate Debtor have been denied and disputed. Ld. Counsel for Operation Creditor has submitted that the application under section 9 IBC meets all the requirements of law and there is no pre-existing dispute. It has further been submitted on behalf of the applicant that the Suit and the complaint was filed only after having the intimation of notice under section 8 of the Code and therefore it is a cover up to escape the consequence in terms of the relief sought in the application under section 9 of the IBC. These are merely an afterthought and thus do not constitute a pre-existing dispute as the notice of demand was served prior to the filing of the Civil Suit and the criminal complaint as the email was sent at 3.38 a.m. on 27-09-2019. Therefore, in any case the Civil Suit and the criminal proceeding were filed subsequent to the notice. 27. Taking up the objection regarding pre-existing dispute, our attention has been drawn to Annexure-C which are letter dated 9thJuly 2019 and two letters dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar boundary wall work at our group site at 43, Rafi Ahmed Road. It is common sense that rates 2 years ago should have been at least 15-20% lower than present. Your quotation for 43 Rafi Ahmed Kidwai Road is enclosed for your ready reference. You are requested to kindly come to our Head Office and resolve the matters at the earliest. Thanking you, Yours Faithfully, For CFM Infratex Ltd. Manager Accounts". "Date: July 11, 2019 To Saha Enterprise Prop: Gopal Chandra Saha P.O.& PS- Baruipur, Baruipur Puraton Thana, Kolkata- 700144 Dear Sir, Ref: Your Bill No. SE/12 dated 23.04.2018 Item No. 5 (Part-I and II), 6 and 7A We have received details of your bill of Rs. 6,80,000/- last week after repeated reminders. Kindly provide us the certified copy of the Joint Measurement Record in support of your above bill. Also, in your item no. 6, you have charged @ Rs. 2,250/- per cum. for silver sand filling which is not the market rate by any stretch of imagination you will fully appreciate that we will not be able to pay for any items billed by you huge rate variation from the market. You are requested to kindly come to our Head Office with relevant papers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ware Pvt. Ltd. (2018) 1 SCC 353. In view of the law laid down by the Apex Court, it is very clear that we are not here to determine the merits of the dispute. We are only to see, whether there is a plausible contention which is not patiently feeble legal argument or an assertion of facts unsupported by evidence. It has been further observed that the Hon'ble Supreme Court the defense should not spurious, mere bluster, plainly frivolous or vexatious. A dispute should truly exist between the parties which may or may not ultimately succeed. iv. Assuming the Civil Suit and the complaint was filed in reaction to notice under section 8 and on the same day i.e. 27th September, 2019 after receiving notice section 8 of IBC, we have to consider other facts also i.e. stand taken in reply to notice under issued under Section 8 of IBC and contentions in reply affidavit which are supported by the three letters by Corporate Debtor, reproduced hereinabove. It is also settled law the 'term dispute' as defined in sub-section (6) of section 5 of IBC cannot be limited to proceeding within the limited ambit of a suit or an arbitration and the term. v. The parameter to ascertain as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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