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TMI Blog2022 (6) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... Ganguly Lane, Kolkata, West Bengal, 700007, (hereinafter referred as the Corporate Debtor). 3. It is submitted that the Operational Creditor is one of the largest manufacturers and exporters of Dhoops & Agarbathies including sambhranis, Kumkum & Turmeric and had supplied the Joss Powder to the Corporate Debtor who are the Exporter/Manufacturer of Incense sticks, cones, dhoop sticks mosquito repellent coils, etc. and during the course of business they had transacted with each other and a huge outstanding has been created in favour of the Corporate Debtor which is to be payable to the Operational Creditor. 4. It is submitted that the Joss Powder was received and accepted by the Corporate Debtor and there were no dispute at the time relating to the quantity and quality of goods but thereafter the Corporate Debtor had failed to make the payment for the outstanding dues of the invoices dated 22nd July, 2016 to 03rd February, 2017 amounting to Rs.4,81,862/- (Rupees Four Lakhs Eighty One Thousand Eighty Hundred Sixty Two), the copy of the invoices issued by the Operational Creditor to the Corporate Debtor is annexed as Exhibit-C and the copy of the Ledger of Corporate Debtor in the boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l times to repay the outstanding dues but the same remain unpaid till date. However, the Operational Creditor had received a reply from the Corporate Debtor on 24th May, 2019 against the issue of the Demand Notice stating that the matter is under dispute at Fast Track Criminal Court, Chennai and the same is pending till date and also stated that letter/ correspondence will be shared but the same were never shared by the Corporate Debtor which clearly means that the reply sent by the respondent is vague, ambiguous, and upthrough nearly to raise false and fabricated dispute to escape the provision of Insolvency and Bankruptcy Code, 2016, the copy of the Reply Letter received from the Corporate Debtor by the Operational Creditor is annexed as Exhibit- J. 11. In the reply affidavit filed on behalf of the Corporate Debtor by one of its Directors namely Asis Kanti Paul, the Corporate Debtor has submitted as under:- a. The application as framed is not maintainable in law and on facts as alleged in the application. b. The application is barred by the principles of estoppel, waiver and acquiescence and by the principles of law analogous thereto. c. The Operational Creditor has got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any sort of details or correspondence of dispute upon receipt of the Demand Notice issued under section 8 of the IBC,2016 or thereafter. 15. It is submitted that thereafter, the Operational Creditor was constrained to file the present petition before this Adjudicating Authority after service of the advance copy of the Petition upon the Respondent and all its Directors. No response was given by the Respondent to the Advance copy of the Petition sent by the Petitioner. 16. It is submitted that thereafter, the Corporate Debtor was issued notice of hearing by this Adjudicating Authority as well as by the present Operational Creditor in terms of Order dated 24/10/2019 passed by this Adjudicating Authority. The Corporate Debtor appeared through its counsel before this Adjudicating Authority on 30/12/2019 and sought time to file reply. On the next date of hearing i.e. 03/02/2020, the Corporate Debtor again sought further time to file reply wherein this Adjudicating Authority directed that affidavit in reply to be filed within next three days failing which, the matter will proceed ex-parte. On the next date of hearing i.e. on 14/02/2020, the Corporate Debtor filed the reply and came out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of materials vide two letters dated 27.10.2017 and 24.11.2017.Copy of the letters dated 27.10.2017 and 24.11.2017 are annexed as Annexure-D and E respectively. 23. It is submitted that in between these letters, a letter from an advocate was received on 21st November, 2017,whereby new issue was raised by the Operational Creditor and fraudulently, stating that the representative had visited the godown to verify the inferior material and that they were shocked to know that it was only the waste material in the garbage bag in the godown so as to raise a dispute in respect of the said transaction. So, however, on one side they have accepted several times that the material is of inferior quality and after some time again they have change their version when the Corporate Debtor was about to send the goods and also they have wrongfully mentioned the visit, the answering respondent puts the operational creditor in strict proof regarding the verification of goods done by the Operational Creditor. 24. It is submitted that thereafter, when the GST certificate was received by the Corporate Debtor vide the same letter dated 21st November, 2017, where they have changed their stance, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 1650 of 2022), held that there is no bar in law to the amendment of pleadings in an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 or to the filing of additional documents apart from those initially filed along with application under Section 7. The answering respondent is relying on same analogy in the instant section 9 application. 30. It is further submitted that the Operational Creditor was aware of the existence of dispute at the time of filing of application under Section 9 of the Insolvency and Bankruptcy Code, 2016. 31. After going through the petition, reply and all other documents placed on record, it is quite clear that in reply to the notice under section 8 of the Code, the Corporate Debtor vide its reply dated 24th March,2019 had informed the Operational Creditor that the matter is under dispute at Criminal Court Chennai, Fast Track Criminal Court, the Corporate Debtor had given the details of the matter pending before the said Criminal Court. They further submitted that they would be sending to the Operational Creditor all the details of the account and letter/correspondence. Similarly, in its reply to the Operational Creditor, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor was very much aware of the existence of the dispute at the time of filing of the application under section 9 of the Code and, therefore, the present application is not maintainable. The Corporate Debtor has sought to refer to and place on record certain documents / correspondence between the parties during the course of arguments. 33. After hearing the arguments of both the Ld. Counsel for the parties and going through the documents placed on record, it is clear that in reply to the demand notice, the Corporate Debtor had referred to some disputes pending before the Criminal Court, Chennai and had further stated that the letters and correspondence will be sent to the Operational Creditor shortly. In continuation thereof, the Corporate Debtor has further referred to those disputes between the parties in its reply affidavit also and during the course of arguments also, those very documents have been placed before the Bench. Since the complaint under section 138 of the N.I.Act, 1881 had been pending between the parties and certain pre-existing disputes had been pending between the parties, this petition will have to be rejected. 34. Accordingly, C.P (IB) No.1780/KB/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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