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TMI Blog2022 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... r ( Technical ) ] This appeal has been filed under section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter called 'IBC') assailing the judgment dated 20.8.2019 of NCLT, Kolkata Bench (Adjudicating Authority) in CP(IB) No.1692/AB/2018, by which the Adjudicating Authority has dismissed section 9 application filed by the Appellant on the basis of discrepancies found in the claim of Appellant/Operational Creditor and objections raised by the Respondent/Corporate Debtor. 2. According to the Appellant, it is engaged in business of manufacturing and trading of various types of bitumen, Light Density Oil (LDO) and its allied products (hereinafter called "goods") and the Respondent-Corporate Debtor is engaged in the business of road co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor though the disputes were raised for the first time in reply to the demand notice sent by the Respondent/Corporate Debtor on 18.10.2018. According to the Appellant, the Respondent has disputed delivery of goods relating to invoice No. MPPL/062/16-17, dated June 1, 2016 (attached at page 155 of the Appeal paperbook Vol. I) claiming that no goods were delivered, whereas the Appellant has claimed that the delivery of goods was confirmed by the Respondent through an e-mail dated 11.4.2017 and also that the Appellant filed quarterly return with the statutory VAT Authority which evidence the sale of these goods. In connection with invoice No. MPPL/405/15-16 dated March 7, 2016 (attached at page 139 of Appeal paperbook Vol. I), the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has claimed regarding Invoice 1 that a handwritten proforma invoice was raised at the time of loading when the approximate rate prevailing on that particular day was mentioned in the invoice. The computerized copy of the invoice which was issued later contains the correct rate and other details and according to the Appellant, it is the correct invoice applicable for payment. In reply the Learned Counsel for Respondent has said that there are two invoices raised by the Appellant for the related supply of goods and the rates of the goods mentioned in both the invoices are different. He has also raised the issue of short supply of goods against the weight mentioned in the invoice and claimed that the Corporate debtor has received the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that invoice of bitumen No. MPPL/080/16-17 dated 22.6.2016 is forged and fabricated and the signature on the left bottom corner purported to show receipt of goods is forged. 8. We have considered the arguments presented by both the parties and also perused the record. Since the main issue raised in this appeal is regarding the three invoices and related delivery of goods or dispute of a price, we will confine our discussion to the three invoices mentioned above. 9. Regarding Invoice 1 the Respondent's claim is that there are two invoices, one a handwritten one and other the computerized copy, and both state different price rates for the same goods. On the other hand, the Appellant has claimed that the handwritten invoice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erbook Vol. II) also cannot be considered as proof of delivery of goods. Moreover, in the reply to the demand notice dated 18.10.2018 (attached at pp. 177-178 of Appeal Paperbook Vol. I) the Corporate Debtor had called upon Operational Creditor to prove delivery and receipt of materials by Midaas with cogent and unimpeachable documents. There is no receipt confirmation on the Tax Invoice submitted by the Appellant (at pg. 155 of Appeal Paperbook Vol. I) and the consignment note of Siddhi Vinayak Road Carriers (attached at pg. 156 of Appeal Paperbook Vol. I) also does not show convincingly receipt of the said goods by the Corporate Debtor/ Midaas Construction. The Appellant has submitted the ledger account relating to the Midaas Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same lorry carried both Bitumen and Emulsion to the site of the Respondent he has not submitted any proof of the same and moreover, in the absence of any receipt of the delivery of Bitumen at the site of the corporate debtor we are not convinced that the goods (Bitumen) claimed to have been supplied vide Invoice 3 were actually received by the corporate debtor/respondent. 13. Thus, we find that the Appellant has not been able to show convincingly that it had actually supplied materials relating to Invoice 2 and invoice 3 as claimed. We also agree with the Respondent that it could raise the dispute regarding non-supply for the first time in its reply to the demand notice under section 8 as it did not have knowledge of the said Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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