TMI Blog2022 (6) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... aised before the issuance of notice u/s. 8, IBC Code, 2016. 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. The Respondent, in reply to the notice u/s. 8, had stated that the amount due as per his ledger was Rs. 210/- which was supported by his books of accounts. The Respondent has failed to produce any prior communication before the issuance of notice u/s. 8 of IBC Code, 2016 so as to establish that the dispute was pre-existing. Thus, this Tribunal is of the view that no pre-existing dispute exists between the parties. The Respondent has alleged that invoices have been forged by the Applicant to extort money from the Respondent. Both the Respondent and the Applicant have attached their ledgers which do not match and the Respondent has claimed that invoices have been forged by the Applicant - As per the ledger maintained by the Respondent, a mere amount of Rs. 210 is due to the Applicant. The amount of debt due, if any, cannot be ascertained as long as the authenticity of invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the materials, the Corporate Debtor had made partial payments amounting to Rs. 46,47,711/- (Forty Six Lakhs Forty Seven Thousand Seven Hundred and Eleven). Thus, the outstanding amount pending against the Corporate Debtor regarding the aforementioned project is Rs. 5,69,986/- (Rupees Five Lakh Sixty-Nine Thousand Nine Hundred and Eighty Six) which is payable with interest @ 32% which is Rs. 3,76,191/- (Rupees Three Lakh Seventy Six Thousand One Hundred and Ninety One). Hence the total amount outstanding and payable by the Corporate Debtor is Rs. 9,46,177/- (Rupees Nine Lakh Forty Six Thousand One Hundred and Seventy Seven). iv. That in terms of mutual understanding between the Operational Creditor and Corporate Debtor, the Operational Creditor supplied the materials for the aforementioned site as per the requirement of Corporate Debtor. The Operational Creditor strictly followed the terms and requirements of the Corporate Debtor and materials were always supplied on or before time. Various invoices were accordingly raised and submitted as per the materials supplied. There had never been any objection or complaint of any kind whatsoever against the goods/material supplied by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor payable to the Operational Creditor but the Corporate Debtor has till date has not paid the said amount. 2. Consequent to the notice issued by this Tribunal, the Counsel for the Corporate Debtor filed its reply on behalf of the Corporate Debtor stating as below: i. That the Petition filed by the Petitioner under Section 9 of the Insolvency and Bankruptcy Code, 2016 is aimed at arm-twisting the Respondent Company to pay a nonexistent debt. In response to the Demand Notice dated 16.05.2019 in Form 3 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, issued by the Petitioner/Applicant, the Respondent through its Advocate has specifically raised dispute in relation to amount due in relation to the invoices raised. The Respondent has even disputed the invoices raised by the Petitioner/Applicant by stating that certain invoices raised by the Petitioner/Applicant are deliberately and malafidely forged. ii. That had the Petitioner/Applicant been so sure about the amount due, it would have opted for summary suit under Code of Civil Procedure, 1908. Instead, the Petitioner/Applicant has deliberately filed the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves have acknowledged. The Corporate Debtor has maliciously removed invoices from the ledger account in order to show that no amount is due and payable to the Operational Creditor. The Operational Creditor has correctly raised the invoices and a perusal of the said invoices makes it cogent that the said invoices were raised. Therefore, it is evident that the Corporate Debtor had annexed a forged and fabricated ledger in their reply. Hence the Corporate Debtor shall be put to strict proof for the same. ii. That the Corporate Debtor has made false statement in its reply that there was no provision of interest on delayed payments. The said contention has no merit as a perusal of the invoices raised by Operational Creditor states that interest of 36% will be charged if payment is not made within seven days. The invoices raised by the Operational Creditor has a clear intention of charging interest @ 36% if there is delay in payment of the invoices raised. iii. That the reply sent by the Corporate Debtor to the demand notice is a vague reply. As per Section 8(2) of IBC, 2016, the Corporate Debtor shall within ten days either bring to the notice of the Operational Creditor exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor. iv. That the Operational Creditor has already produced the invoices which has a receiving given by the Corporate Debtor and Ledger showing the total dues since the Corporate Debtor has a running account and several invoices were only partially paid by the Corporate Debtor. 5. The Counsel for the Corporate Debtor has filed written submissions on behalf of the Corporate Debtor stating that: i. That no invoices were attached to the demand notice sent by OC to CD. The same stands proved as the copy of the demand notice attached to the Application for Initiation of CIRP does not contain invoices. ii. That the OC merely raised Demand Notice, the CD gave its reply together with details of account of OC in its book (i.e. CD's Book), which clearly raised dispute of the amount due from CD to OC. The total amount due from CD to OC was stated in the reply as a meagre sum of Rs. 210/-. iii. That subsequent to the reply of the Corporate Debtor to the Demand Notice, the Operational Creditor did not make any representation/correspondence with the Corporate Debtor regarding the dispute raised in the reply. iv. That the Corporate Debtor neither issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yzed the meaning of dispute with respect to Operational Creditors and observed: 33. The scheme under Sections 8 and 9 of the Code, appears to be that 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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