9911796707
TMI Blog2021 (3) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency and Bankruptcy Code 2016 ("the Code') of the Respondent PSR Aqua and Engineers Private Limited for the alleged default on the part of the Respondent in clearing the debt of Rs. 32,08,640/- (Rupees Thirty-Two Lakh Eight Thousand Six Hundred Forty only) i.e., Principal amount of Rs. 22,75,120/- and Interest of Rs. 9,33,520, as alleged by the applicant, towards the material supplied by the Applicant. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. The applicant submits that an oral agreement was executed between both the parties, wherein it was held that the CR Sheets, HRPO Sheets, HRPO slitted coils, HR Sheets, etc., was to be supplied by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent stating that: i. The Respondent started its business by purchasing materials from "Allied Strips Limited" (ASL). however, the Allied Strips Limited started supplying material to its customers through Power2SME Private Limited. ii. The Respondent submits that the Entire correspondence for purchase and supply of materials were done by the Respondent with Mr. Rajeev Rawat and Mr. Vikas Dhaiya who were employees of Allied Strips Limited. iii. That the Respondent through Allied Strips limited placed an order for 84 tons of material through different purchase orders and a series of emails were exchanged between the employees of Allied Strips Limited and Respondent regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statutory demand notice has been received till date, thus no dispute was ever raised by except by way of counter to the present petition. * That the Respondent admitted all the invoices so raised by the Applicant and also admits the invoiced amount of Rs. 22,75,120/-. The Applicant also states that the Respondent prepared 02 cheques dated 03.07.2018 for Rs. 10,25,119.75/- for payment and adjusted the debit note of Rs. 12.5 lakhs Thus, the Respondent admitted the entire liability and showed no protest against the invoices raised, the material supplied and also admitted that it intended to pay Rs. 10,25,119.75/-. * The applicant submits that the Minutes of Meeting dated 16.02.2018 is incomplete as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. * That in Par 48 [Neeraj Jain, Director of M/s. Flipkart India Private Limited vs. Cloudwalker Streaming and Anr. Company Appeal (AT) (Insolvency) No. 1354 of 2019 decided on 24th FEBRUARY, 2020, It was made clear that for filing application u/s. 9 of Insolvency and Bankruptcy Code 2016 in case the demand notice is delivered in Form 3 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 then the submission of a copy of the invoice along with the application in Form 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.09.2018 between the Operational creditor and corporate debtor substantiate the fact that there was delay in supply of material, the same was duly acknowledged by the Operational Creditor in the Email communications.
9. The operational creditor regarding the issue of dishonoring of cheque has the option to file Criminal proceedings under section 138 of Negotiable Instruments Act, 1881, before the appropriate forum for the recovery of the same.
10. For the reasons discussed above, since there is a preexisting 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.
11. Accordingly, we hereby dismiss the present application. X X X X Extracts X X X X X X X X Extracts X X X X
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