TMI Blog2022 (5) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent/Corporate Debtor on behalf of the applicant herein; accordingly, the demand notice was valid and legal one. Therefore, the contention raised on behalf of respondent that demand notice was defective in nature stands discarded. The present application under Section 9 of the code stands accepted - Moratorium declared. - Company Petition No. IB- 307/ND/2019 - - - Dated:- 9-5-2022 - Dharminder Singh , Member ( J ) And Sumita Purkayastha , Member ( T ) ORDER Per Dharminder Singh , Member ( Judicial ) 1. The instant application filed under Section 9 of IBC 2016 has been filed by M/s. Merckens Karton-Und Pappen Fabric Gmbh the applicant/operational creditor seeking (for brevity Operational Creditor) to initiate CIRP against the Respondent company/Corporate Debtor (for brevity Corporate Debtor) M/s. Franco Leone Ltd., for the alleged default on the part of the Corporate Debtor having an outstanding balance of Rs. 12,21,663.65/- on account of supplying insoles boards and shank boards suitable for insolesto the corporate debtor. The details of transactions leading to the filing of this petition as averred by the applicant are as follows:- a. The Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the applicant as well as himself, therefore, the same was sent infact to Mr. Vivek Goel, who was dealing with respondent/Corporate Debtor. In view of the said purchase order, respondent received the insole sheets on 10.04.2017 which is apparent from the custom clearance documents. After receipts of the alleged material, the respondent used the same partly for producing the footwears and sent it to market for selling those to individuals, but many customers made several complaints to the respondent about the footwears manufacture with the Insole Sheets sold by them being of low quality and sub-standard. Accordingly, the respondent raised a dispute with Middle Man Mr. Vivek Goel by notice of dispute dated 15.03.2018, which was duly dispatched on 21.03.2018 through speed post, which was never returned back. 4. It is also submitted that the respondent also claimed a sum of Rs. 4,04,155/- besides calling instructions for returning the unused insole sheets. The respondent has raised the said dispute within a period of one year from the receipt of insole sheets supplied by the applicant/Operational Creditor. The Operational Creditor concealed the said material facts. The applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent that there was existing dispute between the party, but it is apparent from the record that though Mr. Vivek Goel was Middle Man between the applicant and respondent, but the said purchase order was sent on behalf of Corporate Debtor directly to the applicant herein i.e. dated 04.01.2017, although, some other purchase order were sent to Mr. Vivek Goel. On the basis of the same, the said invoices were raised by the applicant. Once there was direct communication between Operational Creditor and Corporate Debtor, then it give rise to privity of contract between them. Hence, it could not be said that Mr. Vivek Goel was only responsible and the Applicant cannot file the present petition under Section 9 of the Code against the Respondent/Corporate Debtor. 7. So far as, the defect of the article is concerned, the same was dispatched after one year of the receipt of the consignment and the letter was sent to Mr. Vivek Goel and not to the applicant herein. Even, the consignment was not returned, which shows that the same has been utilized by the respondent/Corporate Debtor. Had there would have any defect in the articles supplied by the Operational Creditor, the same must ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were defective in nature. From the above said facts and circumstances, it is established that there was no genuine pre-existence dispute between the Operational Creditor and the Corporate Debtor. Therefore, the citation referred on behalf of the Respondent Phillips India Limited and MCL Global Steel Private Limited (supra) are not helpful. Rather in this regard, the reference can be made to citation Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. in civil appeal number 9405 of 2017 is squarely applicable to the present facts, wherein it is laid down as under: 40. ...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. Therefore, all that the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Insolvency Resolution Professional of the corporate debtor. 15. We direct the applicant to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional, namely Mr. Vijender Sharma to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Operational Creditor. 16. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to the corporate debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force. 17. A copy of the order shall be communicated to the applicant, Corporate Debtor and IRP above named, by the Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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