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TMI Blog2022 (5) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Bench - VI (hereinafter called 'impugned order') on an application preferred under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'IBC') on the ground of pre-existing dispute between the Appellant 'Tek Travels Private Limited' as Operational Creditor and the Respondent 'PCM Worldwide Flights Private Limited' as Corporate Debtor. 2. The conspectus of the case is that the Appellant provides B2B travel services to travel agents and tour operators under the brand name 'Travel Boutique Online' (website www.travelboutique.com) and the Respondent is a travel agency which started procuring services of the Appellant from the year 2017. 3. The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the Ld. Counsels for both the parties and also perused the record. 5. The Ld. Counsel for the Appellant has argued that the Adjudicating Authority has rejected his Section 9 application on the ground of pre-existing dispute between the parties even though the Corporate Debtor had never communicated to the Appellant/Operational Creditor any deficiency quality of timeliness of services and purported dispute was raised by the Corporate Debtor before issuing the demand notice under Section 8 of the IBC. He has further argued that the Corporate Debtor has made part payment against the invoices issued by the Operational Creditor and if there had been any dispute about the said invoices, no payments would have been made. He has further refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, in the absence of full information about the ADMs and the reasons, therein, he did not make any payment since the payments were disputed. 7. The Section 9 application filed by the Appellant (attached at pp. 69 - 289 of the appeal paper book), in part IV, includes the total amount claimed to be in default as Rs. 6,76,897 which includes Rs. 5,73,882 as principal debt and Rs. 1,03,015 as interest amount. In addition, the Operational Creditor has annexed list and copies of invoices/ADMs issued on the Corporate Debtor by the Operational Creditor for the period 13.05.2017 onwards. 8. It is noted that the demand notice under Section 8 was issued on 18.10.2019 (attached at pp. 59-68 of the appeal paper book) wherein the same amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make any payment against ADM only on receipt of the same." 10. On perusal of the Respondent's reply to Section 9 notice, we find that the Respondent had communicated to the Operational Creditor vide email dated 10.01.2018 (reproduced at pg. 297 of the appeal paper book) stating very clearly that 'they would be in a position to make any payment against ADM only with respect of the same'. We find that details of the ADMs, as sought by the Corporate Debtor vide email dated 10.01.2018, were supplied to the Corporate Debtor vide email dated 19.01.2018 sent by Sunita Nair of Tek Travels Pvt. Ltd. to Meera Kashyap with copy to 'Travel Markers' alongwith copies of the ADMs (attached at pg. 359 of appeal paper book), and again vide email dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. The Respondent has placed on record the email in order to prove its claim. The applicant has denied the allegations. However, the documents on records show that the respondent raised its dispute much above before issuance of demand notice. It is seen that vide an email dated 10.01.2018 clearly shows that it had raised a bonafide dispute regarding the claims as n that date there were no ADMs available to it and the respondent stated that any payment against the said ADM can be made only on the receipt of the same which the petitioner failed to furnish and the same was not paid accordingly.' 13. From the paragraph 6 of the impugned order, we find that the Adjudicating Authority has relied on the email dated 10.01.2018 to infer that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that it has committed an error by not considering the fact that the Operational Creditor had supplied the copies of the ADMs which is evidenced by emails dated19.01.2018 and 24.03.2018 referred (supra). 16. On the basis of detailed discussion above, we are of the view that the purported dispute considered by the Adjudicating Authority as a result of non-supply of copies of ADMs is more like a sham dispute, and it should not come in the way of admission of Section 9 application. We thus, hold that the impugned order is liable to be set aside and Section 9 application of the Operational Creditor should be admitted. The case is remanded to the Adjudicating Authority for passing necessary order which should include order regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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