TMI Blog2022 (1) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed. The OC has issued a demand notice of unpaid operational debt to the CD in the requisite format but the CD/Respondent No.1 has raised a dispute which apparently could not be answered by the OC as the OC has neither done the inspection so far nor has taken back the goods so supplied. The OC has factually failed to communicate that there is no existence of dispute. Further the proceeding under the Code is not for chasing payments, the Hon ble Supreme Court in Transmission Corporation of Andhra Pradesh limited Vs. Equipment Conductors and Cables Limited [ 2018 (10) TMI 1337 - SUPREME COURT ] has already held that IBC is not intended to be a substitute to a recovery forum and also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. The view of the Adjudicating Authority is upheld. - Company Appeal(AT) (Ins)No. 898 of 2021 - - - Dated:- 19-1-2022 - [Justice Ashok Bhushan] Chairperson And (Dr. Ashok Kumar Mishra) Member(Technical) For the Appellant : Mr. Abhishek Kedia and Shobhit Narda, Advocates For the Respondents : Mr. Abhishek Anand, Mr. Ishwar Mohapatra, Advocates for R-1 to R-4 JUDGMENT DR. ASHOK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave no option but to hold that the Corporate Debtor had raised a dispute regarding the quality of goods and Operational Creditor had failed to convince us that the same dispute was resolved, therefore, we are of the view that the Operational Creditor has falsely sworn an affidavit under section 9(3)(b) that no notice was given by the Corporate Debtor relating to the payment of the unpaid operational debt, therefore, in view of the Section 9(5)(ii)(d), if the notice of dispute has been raised by the Corporate Debtor or there is record of dispute in the information utility, in that case the Adjudicating Authority has no option but to reject the application of the Operational Creditor. 26.Accordingly, it is therefore, ORDERED that the present application is not maintainable and same is dismissed. 3. The Appellant is the Proprietor of M/s. Standard Impex , a sole proprietorship firm , engaged in the business of trading various goods such as Resin, Plastic, and Granules etc. The Appellant is the Operational Creditor (OC). The Respondent No.1 is the Private Limited Company engaged in the business of trading and distribution of Plastics and Chemicals, it is the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt about the poor quality of goods delivered by them which is evident from mixing of Calcium Carbonates and Granules in the supplies and issued letter dated 09.10.2015 followed by another letter dated 16.10.2015 for making a joint inspection at the customer place to make an assessment of damage caused by the poor quality of goods supplied by the OC/Appellant. The Respondents have also raised its market reputation getting down because of the poor quality of goods supplied by the Appellant/OC. They have also raised that the invoices (appearing at page 41 and page 68 of the Appeal paper book) are invoices which are issued under Rule 11 of the Central Excise Rule 2002 to remove goods from factory or warehouse and are not invoiced which are issued to the CD by the OC/Appellant. As per the Ledger Account (at page 100 appeal paper book) of the OC in the books of the CD is of 05.10.2015 while he has filed the petition before Adjudicating Authority on 28.06.2019. Hence, as per the Respondent No.1 this falls within the domain of the Limitation Act and to be outrightly rejected as the Application has been filed after three years of the last supply. The Appellant has failed to insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a demand notice means a notice served by an operational creditor to the corporate debtor demanding [payment] of the operational debt in respect of which the default has occurred. Section 9 - Application for initiation of corporate insolvency resolution process by operational creditor. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under subsection (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section. c. The above provisions of the Code clearly provides for the requirements of following three criteria s before admission of a petition under Section 9 of the Code for initiation of CIRP by OC (i) the Debt must be due and payable in law (ii)there must be occurrence of default (iii) the Debt must be undisputed. d. What we are observing in the present case that the OC has issued a demand notice of unpaid operational debt to the CD in the requisite format but the CD/Respondent No.1 has raised a dispute which apparently could not be answered by the OC as the OC has neither done the inspection so far nor has taken back the goods so supplied. The OC has factually failed to communicate that there is no existence of dispute. e. The Hon ble Supreme Court has already amplified the role of the Adjudicating Authority on the question of consideration of dispute in Mobilox Innovations Pvt. Ltd. Vs. K ..... X X X X Extracts X X X X X X X X Extracts X X X X
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