TMI Blog2022 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent. Thus the Appellant has given credit for the deficient weight which was claimed by the Respondent. With regard to Invoice 2, the Respondent has disputed the delivery of goods pertaining to the said invoice though the Appellant has claimed that vide mail dated 11.4.2017, the Respondent had confirmed the delivery of goods - Appellant had to submit unimpeachable proof of delivery of goods to establish his case under section 9 of IBC. Such evidence was also necessary since the respondent had disputed delivery of goods in his reply to the demand notice. Therefore, we are inclined to believe the claim of the Respondent that the goods were actually not delivered at the site. Regarding Invoice 3, the Respondent has alleged that it is forged and fabricated and has also disputed the signature on the left bottom corner of the tax invoice which is claimed by the Appellant as evidence of supply of goods to the Respondent - Though the Appellant has claimed 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 corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une 22, 2016 and goods were delivered at the sites where Respondent s projects were going on, and the goods were used by him without raising any demur and/or protest. The Appellant has further added that the total cost of goods supplied was ₹ 48,76,136/- out of which the Respondent/Corporate Debtor has paid ₹ 34,72,214/- and the principal amount of ₹ 14,03,922/- along with an interest @ 18% per annum is outstanding for payment by the Corporate Debtor. The Appellant has also claimed that the last payment was received by him on April 10, 2017 whereafter he sent several communications through e-mails as reminders for release of ₹ 14,03,922/- as principal amount along with interest. Upon receiving no payment despite regular follow-up, the Appellant issued a demand notice dated 9.10.2018 under section 8 of IBC, which was duly received by the Respondent on 10.10.2018. In the reply to the demand notice dated 18.10.2018 sent by Respondent, he has denied any liability except a claim of ₹ 2,17,438/- disputing the receipt of said goods at his project sites. 3. The Appellant has further stated that three invoices are disputed by the Respondent Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar 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 materials and made payment. 6, In respect of Invoice 2, the Learned Counsel for Appellant has argued that the Appellant filed quarterly VAT returns with the statutory authority regarding the sale of the related goods and would not file such a return unless it had supplied the goods. Furthermore, he has claimed that the same was sold using Form C, being an Inter-state sale from West Bengal to Uttar Pradesh, though despite repeated requests, Respondents have failed to provide Form C to the Appellant. The Learned Counsel for Appellant has also claimed that the issue of non-delivery was raised for the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 10. With regard to Invoice 2, the Respondent has disputed the delivery of goods pertaining to the said invoice though the Appellant has claimed that vide mail dated 11.4.2017, the Respondent had confirmed the delivery of goods. On perusing email dated 11.4.2017, sent by the Corporate Debtor/Midaas Construction to the Operational Creditor/Mascot Petrochem (attached at pp. 160-161 of Appeal Paperbook Vol. I) we find that the Corporate Debtor s representative Sandip De asked for the Statement of Account from 01.04.2016 to 31.03.2017 for the financial year 2016-17 and the current financial year 2017-18 vide this email. This cannot be considered as proof of delivery of the goods in question. The quarterly VAT returns (attached at pp. 187-226 of Appeal Paperbook 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent 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 Invoices 2 and 3 before it received the demand notice. These disputes therefore relate to the dates of purported invoices and in this sense they are legitimate disputes and not sham disputes. The Hon ble Supreme Court in the matter Transmission Corporation of Andhra Pradesh Limited Vs. Equipment Conductors and Cables Limited [Civil Appeal No. 9597 of 2018] has also held that IBC provisions cannot be invoked whenever there is existence of real dispute. For brevity and clarity the same is reproduced below 15. In a recent judgment of this court in Mobilox Innovations Private Limited vs. Kirusa Software Private Limited, this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. 14. In the light of detailed discussion in aforementioned paragraphs, we are of the opinion that the application under Section 9 filed by the Appellant lacked merit and was correctly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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