TMI Blog2022 (1) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... There exists an operational debt and the same despite being acknowledged by the corporate debtor on various occasions and failed in discharging the same that there is no pre-existing dispute - Application admitted - moratorium declared. - CP (IB) No. 31/9/HDB/2020 - - - Dated:- 23-12-2021 - Dr. Venkata Ramakrishna Badrinath Nandula, Member (J) And Veera Brahma Rao Arekapudi, Member (T) For the Appellant : KS.R. Anjaneyulu, Advocate For the Respondents : C.M.R. Velu and D. Bala Subrahmanyam, Advocates ORDER DECISION 1. The present petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the corporate debtor alleging that the corporate debtor has defaulted in payment of an amount of ₹ 1,68,02,813/- together with interest @ 18% per annum. 2. AVERMENTS IN PETITION a) It is averred that operational creditor is engaged in manufacture and trading of Nano materials of metals, metal oxides and its compounds in various delivery forms and formats such as suspensions, dispersions, solgels, powders and solutions for various end-users and applications in diverse i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present application is filed. The entire sum is due under the eight invoices till date. i) It is averred that on 27.04.2019, the operational creditor sought confirmation of the outstanding balance of ₹ 1,68,02,813/- for which the officials of corporate debtor confirmed by email dated 27.04.2019. A copy of Email is annexed as Annexure-7 to the petition. j) It is further stated that on 13.11.2019, the operational creditor by its letter to the corporate debtor sought information of the outstanding balance of ₹ 1,68,02,813/- as on 30.09.2019 and corporate debtor vide email sent confirmation of balance as well as a copy of ledger statement for the year 2018-19 both with seal of the corporate debtor and signature of its officer confirming the outstanding due amount of ₹ 1,68,02,813/- to the operational creditor. k) It is submitted that after the confirmation of outstanding balance as on 25.11.2019 the corporate debtor has not made any payments to the operational creditor except for one payment i.e. ₹ 2,596/- on 26.11.2019, which relates to altogether separate transaction and has nothing to do with the invoices relating to the present petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor. The corporate debtor neither placed the purchase orders nor acknowledged the material. It is submitted that against the invoices No. B1552 dated 19.09.2018 and Invoice No. B1553 dated 19.09.2018, the corporate debtor observed that the material supplied is defective with share variation and yellow color mix. Further the representatives of the operational creditor, discussed about the defective material and checking was carried out by the representatives of the operational creditor, corporate debtor and Sintex-BAPL Ltd. on 05.10.2018 and declared that there was yellow color mixing in the material and color shade variation and degraded yellowish color found in the received lots. d) Further, because of defective material about 25 tanks manufactured by Sintex were rejected and the production got suffered due to the non-availability of good material. The rejected material was asked to be taken back and to supply the quality material, but did not happen. e) While the remedial action against the defective material/rejected goods was pending with the operational creditor, a legal notice dated 21.11.2019 was sent to the corporate debtor demanding payment of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for defects in the goods supplied was raised by Sintex against the corporate debtor and not the operational creditor. The evidence can be seen from the minutes of the meeting dated 05.10.2018 which make it clear that Sintex recommend the supplier. M/s. Blend Colours to replace the materials received and observed with Colour shade and degraded yellowish . Thus submitted that no remedial action is pending before the operational creditor with respect to the aforesaid invoices relating to purported defective material. d) It is submitted that in the letters dated 19.12.2019 the corporate debtor has come to a theory that operational creditor was a guarantor for Sintex and therefore was liable to discharge a debt of ₹ 1,96,85,772.38/- and further in the letter dated 31.12.2019 there was a false allegation that the defective material is supplied by the operational creditor. e) It is submitted that the dispute alleged by the corporate debtor in his counter with respect to the invoices B1552 and B1553 were between the corporate debtor and Sintex. But the present petition is with regard to the Invoice No. 50345, 50413, 50529, 50554, 50570, 50578, 50585 50617 which were is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action against the defective material is pending with the operational creditor, legal notice dated 21.11.2019 was sent to the corporate debtor demanding payment of ₹ 1,68,02,812/-, which shows that there was pre-existing dispute prior to the demand notice. d. Learned Counsel for corporate debtor has referred to the Judgment of Hon'ble NCLAT in CA(AT) (Insolvency) No. 58/2017 in the matter of VDS Plastics Pvt. Ltd. Vs Pal Mohan Electronics Pvt. Ltd., wherein it was held that if dispute existed prior to the demand notice with regard to the services and no steps taken thereafter except issuing demand notice, the petition filed by the operational creditor to be rejected. Learned Counsel for corporate debtor has also referred to the Judgment of Hon'ble Supreme Court in the case of Mobilox Versus Kirusa Software Pvt. Ltd., wherein it was held that if dispute truly exists, the Adjudicating Authority has to reject the application. e. Learned Counsel for operational creditor further submitted that the dispute alleged by the corporate debtor was in respect to invoices B1552 and B1553 which are between the corporate debtor and Sintex. In so far as, the present petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor; (c) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (d) Notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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