TMI Blog2021 (1) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sanjiv Kumar, Additional District and Session Judge (Retd.) after consideration of the disputes raised by both the parties, had passed an Arbitral Award dated 24.09.2019 whereby the Ld. Sole Arbitrator dismissed the Claim being premature and also dismissed the Counter Claim of the Corporate Debtor by recording that the same would be considered only after the Claimant (Operational Creditor herein) has failed to take all possible legal remedies to recover the Claim of the Respondent with the supplier. It is clear that the dispute must exist before the receipt of demand notice. Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice - since there is a pre-existing dispute between the parties, we have no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016. Application dismissed. - IB-168/(ND)/2021 - - - Dated:- 4-1-2021 - P.S.N. Prasad, Member (J) And Rahul Bhatnagar, Member (T) For the Appellant : C.S. Chauhan, Advocate For the Respondents : A.K. Aggarwal, Advocate ORDER Rahul Bhatn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly received by the Corporate Debtor. Further, the goods have been given to the entire satisfaction of the Corporate Debtor and no dispute whatsoever was raised by the Corporate Debtor with regard to the said goods or towards the Invoices raised as above. The Corporate Debtor raised the dispute with regard to the quality of the goods supplied only after receipt of various follow ups from the Operational Creditor. v. The Corporate Debtor failed to make the full payment towards the aforesaid invoices and on rigorous follow ups by the Operational Creditor, only a part payment had been made by the Corporate Debtor to the Operational Creditor on various dates. It is also stated that as on date, an amount of ₹ 3,90,18,248/- (Rupees three crores ninety lakhs eighteen thousand two hundred and forty-eight only) was received by the Operational Creditor. Inspite of repeated oral requests and written reminders for the release of payments and even after personal visits for settlement of debt dues, all efforts of the Operational Creditor went in vain and no initiative was taken by the Corporate Debtor to release the pending payment of ₹ 6,49,94,661/- which has caused grave preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. The Corporate Debtor stated that he denies and disputes each and every claim, allegation and assertion contained in the aforesaid demand notice. The demand Notice and the purported claims there under are untrue, concocted and bad in law. The Application/Petition under Section 9 of the Act has been filed with a mala-fide intent and an ulterior motive to coerce and arm twist the Corporate Debtor, the Respondent herein to make unwarranted payments. ii. That the Respondent/Corporate Debtor had purchased crude palm oil of edible grade from the Operational Creditor and also entered into a High Seas Agreement and had also made part payment towards the goods supplied from the Operational Creditor, but the Corporate Debtor had also intimated the Operational Creditor about the deteriorated quality of the Edible Oil purchased from the Operational Creditor and the corresponding letters are already on record placed by the Operational Creditor itself. It is further to say that the Operational Creditor had earlier also issued demand notice seeking payment of ₹ 6,49,94,661/- for which the Corporate Debtor had replied by its letter dated 09.01.2019 whereby the Corporate Debtor had sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi. That the Operational Creditor issued a demand notice dated 28.01.2021 to which the Corporate Debtor had duly replied by its letter dated 05.02.2021. vii. That it is evident from the aforesaid submissions as well as the documents already on record that the dispute between the Operational Creditor and the Corporate Debtor are pre-existing disputes and thus, the same are not maintainable before this Hon'ble Adjudicating Authority. viii. The Corporate Debtor vehemently denies any liability towards the alleged claimed amount due and payable, hence the Operational Creditor is not entitled for any alleged claim as raised under the present Petition/Application. 3. Vide order dated 27.10.2021, both the parties were directed to file their written submissions. The written submissions have been filed by both the parties. 4. The Counsel for the Operational Creditor has filed its written submissions stating that: That the Operational Creditor was not responsible for the goods to be supplied to the Corporate Debtor. The duty of the Operational Creditor was to provide the Edible Oil in bulk under the High Overseas Agreement and it has nothing to do with the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd further, the same was highlighted by the Corporate Debtor in its reply dated 05.02.2021 to the demand notice dated 28.01.2021. That it is evident from the aforesaid submissions that there is a preexisting dispute between the parties and hence the present Insolvency Petition is not maintainable before this Hon'ble Adjudicating Authority and if the Operational Creditor is aggrieved by the act of the Corporate Debtor, it has another alternative remedy but not before this Hon'ble Adjudicating Authority under IBC. The Corporate Debtor has relied on following judgments: M/s. Mobilox Innovations Pvt. Ltd. V/s. Kirusa Software Pvt. Ltd. CIVIL APPEAL No. 9405 OF 2017 M/s. Sumilon Polyester Pvt. Ltd. V/s. M/s. Parikh Packaging Pvt. Ltd. COMPANY APPEAL (AT) (Insolvency) No. 695 of 2020 Inqnest Marketing Solution Pvt. Ltd. Vs. Koovs Marketing Consultants Pvt. Ltd. Company Appeal (AT) (Insolvency) No. 317 of 2019 6. We have heard the Ld. Counsels for the Operational Creditor and Corporate debtor and perused the averments made in the application as well as the documents enclosed with the application. 7. On Perusal of Application as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has failed to take all possible legal remedies to recover the Claim of the Respondent with the supplier. 10. The Hon'ble Supreme Court In Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P.) Limited- analyzed the meaning of dispute with respect to Operational Creditors and observed: 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e., on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be (Section 8(1)). Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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