TMI Blog2022 (2) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... dencing any 'PreExisting Dispute' prior to the issue of Demand Notice. It is also pertinent to mention that in its Reply to the Application, the applicant apart from raising a bald denial of liability, has not filed any substantive material in support of their contentions. The contention of the Corporate Debtor regarding false and fabricated invoices is unsustainable having regard to the fact that the invoices on record have even been acknowledged by the Corporate Debtor as per the attachment to its email dated 12.11.2018. Monetary amount involved - HELD THAT:- As per the averments made in the application in Form-5 : Part IV, a sum of ₹ 5,64,618/-, has only been received by the Applicant and a sum of ₹ 9,29,120/- is still due and payable. Accordingly, an unpaid operational debt of more than 1 Lakh is clearly due and payable to the Applicant. Further, the cheque issued by the Corporate Debtor towards part-payment of its liability is a clear admission of the outstanding liability. Also, during the course of hearing, the corporate Debtor has time and again stated that they are in the process of settling the matter amicably with the applicant, which is agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... height with operator for Samsung firefighting project at Bhiwadi, Jaipur. The said purchase order was revised on 23.05.2018 for a period of three months. 5. The Applicant further states that after commencement of operations, the invoices were raised at the end of each month when the machine was used. The Corporate Debtor was required to make payment within 15 days from the date of the invoice. The details of invoices raised, as submitted by the Applicant, are reproduced below: 6. The Applicant submits that after repeated request to clear the outstanding liability, the Corporate Debtor as a part payment towards the total legal liability issued a cheque in favour of the applicant dated 15.10.2018 for ₹ 4,00,000/- only drawn on SBI Vasant Kunj, Delhi. The cheque, on being presented to the bank, got dishonored and was returned vide Return Memo dated 17.10.2018 with the remark Account Closed . 7. The Applicant further submits that vide email dated 25.10.2018 and 31.10.2018, they again requested the corporate Debtor to pay off the outstanding dues. In the said emails the applicant also annexed the copy of ledger to show the outstanding dues. It is added that in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hly reports and increase in work hours for 21 hours or more which is in violation of industry standards had already been raised prior to the issue of demand notice. Further, the applicant has also failed to file the monthly reports and the existing disputes render the invoices of the petitioner completely redundant. Also, in the reply dated 11.12.2018 to the notice dated 30.11.2018, the corporate debtor again stated that there is a dispute as regards the discrepancies that have been time and again noticed in the log books and the corresponding monthly reports. The corporate debtor also requested the applicant to provide the original log books to get the same audited by the accounting team for proper reconciliation of records and accounts. But the applicant failed to provide the rectified log books. e) It is further averred that the Applicant has provided falsified and incomplete data, which does not substantiate a valid debt through legitimate invoices and hence, the petition is prima facie defective and liable to be dismissed on this ground. f) The Corporate Debtor has highlighted that the Applicant has not acted as per the contract and has breached the contract time and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the Log books, monthly report and the issuance of incorrect invoices. However, we notice that the corporate debtor has failed to place on record or produce any communication, exchanged with the applicant, evidencing any 'PreExisting Dispute' prior to the issue of Demand Notice. It is also pertinent to mention that in its Reply to the Application, the applicant apart from raising a bald denial of liability, has not filed any substantive material in support of their contentions. Therefore, we are of the considered view that the law laid down by the Hon'ble Supreme Court in 'Mobilox Innovations Private Limited' Vs. 'Kirusa Software Private Limited', (2018) 1 SCC 353 is squarely applicable to the facts of this case. At this juncture, we find it apt to reproduce the relevant paragraph as hereunder; 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s part-payment of its liability is a clear admission of the outstanding liability. Also, during the course of hearing, the corporate Debtor has time and again stated that they are in the process of settling the matter amicably with the applicant, which is again, an admission of unpaid operational debt due and payable by them to the Applicant. In view of the above, we are further strengthened by the law laid down by the Hon'ble Supreme Court in the Innoventive Industries Ltd. Vs. ICICI Bank and Ors. - (2018) 1 SCC 407 wherein, it is observed and held that: The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning nonpayment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an installment amount. For the meaning of debt , we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a claim and for the meaning of claim , we have to go back to Section 3(6) which defines claim to mean a right to payment ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to the condition that no disciplinary proceedings are pending against the IRP so named. The specific consent in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 are to be filed by him within a week from this order. The IRP is directed to take the steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016. 20. The Operational Creditor is directed to deposit Rs. Two Lakh only with the IRP, Mr. Vinod Kumar Chaurasia to meet to the expenses and perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Applicant. The amount, however, be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Operational Creditor. 21. A copy of the order shall be communicated to the Applicants as well as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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