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TMI Blog2021 (2) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... dy existing vendor, approached the Operational Creditors that the former was desirous to take shuttering and scaffolding material on rent/lease from the Operational Creditor for the purpose of its construction work at its sites situated at Etawah and Jaipur. ii. It was agreed by and between the parties that the operational creditor would supply the scaffolding and shuttering material on the basis of verbal orders from the Corporate Debtor, against which appropriate invoices will be raised by the Operational Creditor. The Operational Creditor at the request of the Corporate Debtor agreed to provide such services mentioned here in above at such rates that were agreed between the parties. iii. In pursuance thereof, the operational creditor supplied scaffolding and shuttering material at the abovementioned sites of the corporate debtor. iv. The Corporate Debtor accepted the services rendered by the Operational Creditor. v. The Operational creditor contended in the Application that the Corporate Debtor has never raised any dispute with regard to the quality or the quantity of the material provided by the Operational Creditors and as such, has used the said material for the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement in writing, the legality of amount claimed to be in default Rs. 60,34,306/- is highly questionable and illogical. iv. The receipt of invoices by security guard at gate office of the Respondent/ CD was itself a bona fide act, there was no intention of acknowledgement of amount payable to your client but for the checking & verification of the bills submitted. v. Bills/invoices annexed with demand notice are not as per the agreed rates and the payments due has already been made in respect of the amount due, after having detailed discussions with the applicant in various meetings after appraising the applicant of rate disputes pending among the parties. Hence as on date no amount is payable. vi. Legality of the amount of Rs. 21,62,115 + Rs. 3,72,191.79 + Rs. 35,00,000 is highly questionable and illogical. The claim of Rs. 35 Lakhs as approx cost of scaffolding / shuttering material is false, vague, vexatious and misleading as scaffolding / shuttering material has already been removed / taken back by the applicant from the project sites of the respondent. vii. The applicant has been wrongly claiming payment following bills, as the payment has already been made on 08.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the agreement but the respondent fails to enclose any document to show that prior to the issuance of demand notice, the respondent has raised any dispute regarding the amount claimed by the applicant. 9. He further submitted that even in the reply, the respondent admits that they have paid the part payment and it is also the case of the applicant that part payment has been made. He further submitted that nowhere in the reply, the respondent has disputed this fact that on the basis of oral agreement, the applicant has provided the services, therefore, the contentions raised by the respondent do not come within the purview of dispute. So, the petition may be admitted. 10. On the other hand, Ld. Counsel for the respondent submitted that there is no prior agreement in writing, the legality of amount and interest claimed is questionable, bills were not provided to the respondent and the dispute is that whether or not amount is payable to the Operational Creditor. 11. He further submitted that after filing the reply, the respondent has also filed the written submissions and in para 3 of the written submissions, the respondent has mentioned that "that Corporate Debtor withdraws its r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re amount has been paid rather they admit that the part amount has been paid and that is the case of the applicant. 18. We further notice that by filing the written submissions, the respondent has mentioned that after the verification, it found that the bills are correct and admits the liability. 19. We notice that the respondent in its reply has admitted that against some of the bills, referred in para 13, the payment has been made. These bills are enclosed by the applicant at page 45, 46, 49, 50, 65, 66, 53 and 54 and on perusal of these bills, we further notice that while making the payments of these bills, the respondent has not raised any dispute regarding the rate. Therefore, we hold that for the first time, the respondent has raised the dispute of rate. 20. On the basis of the discussion made in the aforesaid paragraphs, we are of the considered view that the dispute which the respondent has raised by filing reply to the demand notice is not a dispute under Section 5(6) of the IBC. 21. In terms of Section 9(5)(i), when we consider the case in hand, we find that it has been established by the Operational Creditor that the application is complete, there is no payment of un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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