9911796707
TMI Blog2022 (2) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... various Invoices after supplying the materials to the Corporate Debtor and the Operational Creditor has also filed the Ledger Statement, which is maintained in the books of the Operational Creditor and a perusal of the same shows that a sum of Rs. 53,52,607.73/- is due and payable by the Corporate Debtor. However, on the contrary, the Corporate Debtor has also filed the Statement of Accounts in relation to the Operational Creditor maintained in their books of account, which goes to on show that only a sum of Rs. 60,169/- is pending to be paid by the Corporate Debtor to the Operational Creditor. Taking into consideration this aspect, this Tribunal as early as on 05.12.2018 has directed the parties to reconcile their Statement of account and to report the difference if any on the next date of hearing. Subsequently, the time was again granted to reconcile the account for the parties on 05.02.2019, 11.03.2019, 29.03.2019, 26.04.2019, 28.08.2019, 15.11.2019, 19.11.2019, 29.01.2020, 11.02.2020 and 09.03.2020. Since the parties have failed to comply with the directions, the Orders were finally reserved on 09.03.2020. 11. As to the facts of the case, from the records it is evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt/Operational Creditor under Section 9 of the Code) passed by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench I, Chennai), the Learned Counsel for the Appellant submits that the 'Adjudicating Authority' had erroneously dismissed the application of the Appellant, without considering the circumstances, evidence and documents adduced by the Appellant in support of its 'Corporate Debt/Claim' of Rs. 53,52,607 with interest at 30% per annum, which was disputed by the Respondent/Corporate Debtor on the basis of the bald, vague, fake and forged statements of accounts and corresponding credit/debit notes of different dates/occasions. 4. The Learned Counsel for the Appellant contends that the 'Adjudicating Authority' had committed an error in entertaining and placing reliance upon the forged and fabricated documents of the Respondent at a belated stage of which not even a 'whisper' was made in the reply of the Respondent to the Statutory Notice in Form IV sent by the Appellant. 5. It is the stand of the Appellant that the impugned order was passed by the 'Adjudicating Authority', resting on presumption and assumption and there was no proper appreciation of Docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter Statement' before the 'Adjudicating Authority' that there was business transactions between it and the Applicant (Appellant) but all the dues were settled as early as on 2015 itself and due to the supply of sub-standard/inferior quality of material by the Appellant/Applicant, heavy loss was suffered and that steps are being taken to recover damages from the Appellant. ASSESSMENT 12. Before the 'Adjudicating Authority' the 'Appellant/Applicant/ Operational Creditor' filed CP/328/IB/2018 (under Section 9 of the I&B Code, 2016) against the Respondent/Corporate Debtor. As a matter of fact, in the Form 5, under Part IV, 'Particulars of Operational Debt', it is mentioned as under:- 1 TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE, AND THE DATE FROM WHICH THE DEBT FELL DUE. A) The total outstanding Debt due and payable by the Corporate Debtor to the Operational Creditor stands at Rs. 53,52,607.73 (Rupees Fifty three lakhs fifty two thousand six hundred and seven Rupees and Seventy three Paisa) as on date (hereinafter referred to as 'Operational Debt'). The above total 'Outstanding Dues is excluding the contractual rate of interest mutually agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor on the Corporate Debtor. Therefore, the total Operational Debt payable by the Corporate Debtor is Rs. 53,52,607.73 (Rupees Fifty three Lakhs Fifty Two Thousand six hundred and seven Rupees and Seventy Three Paisa) which is exclusive of the agreed contractual rate of interest @ 30%. The Operational Debt has arisen as the Corporate Debtor has failed to make the lawful and legitimate payments due under the said Invoices raised by the Operational Creditor. 14. The Appellant had issued a Statutory Winding Up Notice dated 03.08.2016 (under Section 433(e) and 433(f) r/w Section 434(1)(A) of the Companies Act, 1956) to the 'Corporate Debtor', its 'Managing Director' and the other 'Directors of the Corporate Debtor', wherein a demand for payment of Rs. 53,52,607.73 along with interest @ 30% per annum (outstanding amount due to the Appellant) was made. Also the Respondent and others were informed that the Appellant is separately entitled to recover all or any of the losses suffered due to the non-payment. 15. It transpires that the 'Appellant' on 31.08.2015 under the subject 'payment due against goods sold' had addressed a communication to the Managing Director of the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TE 20. Under Section 9 of the Code, an 'Adjudicating Authority' is required to examine before admitting or rejecting an application under Section 9 of the Code whether the 'dispute' raised by the 'Corporate Debtor' qualify as a 'dispute', in terms of Section 5 (6) of the Code and whether Notice of Dispute given by the 'Corporate Debtor' satisfies the conditions prescribed in Section 8(2) of the Code. The 'Adjudicating Authority' is to scrutinise the attendant circumstances to the issue of 'Demand Notice' with a view to decide whether a bona fide dispute exists between the parties. The 'dispute' must be one which necessitates more investigation and at this juncture, the 'Adjudicating Authority' will not examine the merits of the 'dispute'. If the 'dispute' is not an imaginary one or a hypothetical one and if the 'dispute' really exists, the application is liable to be rejected, as opined by this Tribunal. 21. If there is plausible contention raised on behalf of the concerned party, which requires a further investigation, then the application cannot be admitted. The 'dispute' in whatever form, ought to have been raised before the 'Demand Notice' under section 8 of the Code was serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of parties are only to be reconciled. 26. It is to be remembered that an 'Adjudicating Authority' is not a 'Court of Law' since it does not decide a money claim or a Civil Suit. The proceedings under the I&B Code, 2016 are summary in character and they are not 'adversarial'. Of course, the 'dispute' must be an existing and genuine one. 27. In the present case on hand, the Respondent/Corporate Debtor in its Counter to CP 328/IB/2018 at paragraph 7 had clearly averred that due to supply of sub-standard/inferior quality of materials by the Appellant/Applicant, the Respondent has suffered loss and was taking steps to recover damages from the Appellant. Therefore, it is quite evident that the Respondent/Corporate Debtor had raised a 'dispute' in regard to the quality of goods and it can be safely and securely said that a 'dispute' is pending about the 'Debt'. 28. In regard to the rate of interest at 30% per annum claimed by the Appellant/Operational Creditor in respect of the due amount, the Respondent comes out with a plea that never at any point of time, it had agreed for the said rate of interest by duly signing the contract in this regard. Significantly, the Respondent/Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
