TMI Blog2022 (5) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to evade liability. It is significant to mention that the Corporate Debtor does not deny the issuance of three cheques totalling to Rs.35,54,755/-. It is their only case that there was a pre-existing dispute between the parties. It is pertinent to note that the Corporate Debtor has not raised any pre-existing dispute in reply to the Demand Notice under Section 8 of the Code. Be that as it may, the contention of the Learned Counsel that the MOU expired on 30.09.2016 and, therefore, the amounts raised for the invoices for the subsequent period is not payable, is unsustainable as the documentary evidence establishes that the claims made by the Operational Creditor were against the invoices for the period 10.03.2017 to 15.09.2018 and have no nexus with the MOU - It is seen from the record that there is no disputed questions of fact and that the argument raised regarding the existence of a dispute is a patently feeble legal argument unsupported by evidence. The defence is spurious and a plainly frivolous one. There is no material on record to establish that there was any dispute prior to the issuance of the Section 8 Demand Notice or that there was any assertion of fact supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness Development Partner. It is submitted that a Memorandum of Understanding (MOU) was executed on 14.08.2016 to develop their business in the Northern and Eastern Area and that the liability of Rs.35,54,755/- can only be reconciled between the parties after the amount owed to the Corporate Debtor, as per MOU, is adjusted. It is stated that the cheques issued by the Corporate Debtor was as a security towards the MOU. It is further contended that the Corporate purchased lab equipment between 10.03.2017 and 15.09.2017, during which period, the Corporate Debtor observed that the goods supplied under the invoices were grossly overpriced and the same was communicated to the Operational Creditor vide email dated 18.09.2017 and 22.09.2017. 3. Learned Counsel argued that in September, 2017 itself, the Corporate Debtor had raised substantial disputes with respect to the valuation of the various products and that it is only to recover the disputed amounts under the cheques bearing Nos.000005, 000006 and 000009, that the Operational Creditor had filed this Application. It is submitted that proceedings under Section 138 of the Negotiable Instruments Act, 1881 were initiated against the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)). What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. ........ 17. In the said case, the Hon ble Supreme Court held as to what are the facts to be examined by the Adjudicating Authority while examining an application under Section 9, which is as follows: 34. Therefore, the adjudicating authority, when examining an application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent email only suggests a correspondence with respect to some discussions which needed to be done regarding the actual credit and the amounts paid in between. 9. It is the case of the Appellant that the orders were placed under an MOU for the period May, 2016 to November, 2017 and further that the sur-rejoinder filed by the Corporate Debtor was never considered by the Adjudicating Authority. 10. The issue whether the dispute raised is an assertion of fact has to be decided on the touchstone of the ratio laid down by the Hon ble Apex Court in Mobilox Innovations (P) Ltd V. Kirusa Software Pvt Ltd (2018(1 SCC 353 has held as follows: 51. 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 must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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