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TMI Blog2022 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... is incorporated under the provisions of the Companies Act, 1956 having its registered office situated at C-55 Okhla Industrial Area, Phase-1, New Delhi-110020. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. The brief facts of the case leading to the filing of this petition as averred by the applicant are as follows: a. The applicant submits that the applicant through its subsidiary M/s. Wacker Chemicals (South Asia) Private Limited had entered into a Distribution Agreement on 29.04.1999 with the corporate debtor. The applicant further adds that in terms of the distribution agreement, it was agreed that the corporate debtor shall act as the Distributor' for Wacker's silicone sealant cartridges on non-exclusive basis. b. The applicant submits that in 2003, Wacker Chemicals (South Asia) Pte Ltd. had sold its manufacturing unit, consequently, M/s. Wacker Chemicals Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Section 433 read with Section 434 and 439 of the Companies Act, 1956 by the applicant to the corporate debtor, the corporate debtor failed to clear the outstanding dues of the applicant or any part thereof without any reasonable excuse. h. The applicant submits that as the corporate debtor failed to pay the outstanding debt on expiry of three weeks from the date of receipt of the statutory demand notice, the applicant filed company winding up petition under Section 433 and 434 of the Companies Act, 1956 being' Company Petition No. 464/2012 against the corporate debtor in the Hon'ble High Court of Delhi. The applicant further submits that the Company Petition No. 464/2012 was transferred to the NCLT, New Delhi in view of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018. i. The applicant submits that during the hearing of the said petition, the Hon'ble NCLT vide order dated 04.10.2018 had allowed the withdrawal of the petition with liberty to file a fresh petition on the same cause of action. j. The applicant submits that applicant issued demand notice in Form - 3 on 15.10.2018 demanding the payment of outstanding debt amounting USD 228,92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agreement. e. The corporate debtor submits that after negotiated settlement the applicant had agreed to compensate the corporate debtor for losses caused due to predatory pricing and discounted sale made by the applicant and buy-back the stock still in possession of the corporate debtor. The corporate debtor further submits that the corporate debtor had raised claims and issued debit note against the applicant on several occasions i.e., 08.01.2010, 24.02.2010 and 31.08.2011, however, the applicant instead of resolving the dispute kept on shifting the onus on its subsidiary/affiliate i.e., Wackers Metroak Ltd. as evident from applicant's acknowledgement of the dispute by the letter and email dated 29.01.2010 and 29.07.2010 respectively. f. The corporate debtor submits that the applicant had sent demand notice dated 05.03.2012 under Section 433(e), 434 of the Companies Act, 1956 demanding the amount as claimed in the present case which was duly replied by the corporate debtor on 20.03.2012 and 11.05.2012 stating that there exist serious and bona fide disputes between the parties. g. The corporate debtor submits that M/s. Wacker Metroark Chemicals Pvt. Ltd., subsidiary compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for both the parties and perused the averments made in the application, reply and written submissions filed by the parties. The relevant documents annexed with the respective submissions have been examined in detail. 6. Before going into the merits of the present petition, this Adjudicating Authority upon perusing the record prima facie observes that the outstanding amount of US$ 228,924 as claimed in Part-IV of Form-5 of the petition is barred by limitation according to the own averments mentioned in the above company petition, and therefore we examine the issue of limitation first. 7. As regard to the limitation, on perusal of pt. 2 of Part-IV of the Form -5, we observe that according to the Applicant, a total of 5 invoices dated 10.09.2009, 10.09.2009, 11.09.2009, 22.09.2009 and 22.09.2009 raised by the applicant were in default and as per the terms of the invoice, the debt became payable 90 days after B/L date. We further observe that the applicant sent demand notice dated 05.03.2012 under Section 433(e), 434 of the Companies Act, 1956 to the corporate debtor demanding the alleged outstanding dues, pursuant to which the applicant had filed winding up petition under Section 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stribution agreement dated 29.04.1999 was executed in the name of M/s. Wacker Chemicals (South Asia) Pte Ltd., whereas the invoices were issued by Wacker Chemie AG and Company Petition 232/2012 before the Hon'ble High Court of Delhi was filed by M/s. Wacker Metroark Chemicals Private Limited and the instant petition was filed by M/s. Wacker Chemie AG. Be that as it may, since the invoices were raised by the applicant in its name, we hold M/s. Wacker Chemie AG as the operational creditor of the corporate debtor. 12. As regard to the contention of the corporate debtor of pre-existing dispute between the parties, we find that in order to substantiate the plea of preexisting dispute between the parties, the corporate debtor has stated contentions in its reply and additional reply along with relevant documents showing the exchange of correspondence letters between the parties to resolve the dispute regarding the alleged breach of distribution agreement. 13. The Hon'ble Supreme Court in a catena of Judgement has laid down the principle that pre-existing dispute which may be ground to thwart an application under Section 9 has to be real dispute, a conflict or controversy. A conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2012 ORDER 07.05.2013 Learned Company Court vide the impugned order has held that the defence raised by the respondent Company needed to be examined, which the Company Court exercising summary jurisdiction could not do so. The learned Company Court has relied on a judgment of the Hon'ble Supreme Court in Ms. IBA Health (I) P. Ltd. Vs. M/s. Info-Drive Systems SDN.BHD. (2010) 10 SCC 553, in which it is held as under:- "the Company Court is expected to assert that the Company's refusal is supported by a reasonable cause or a bonafide dispute in which the dispute can only be adjudicated by a trial in a civil court." We are in agreement with the finding of the leaned Single Judge that the defence raise is reasonable and bonafide and needs to be examined, which would only be done by a civil court, for which liberty has already been granted to the appellant to file a recovery proceedings in accordance with law. We find no infirmity in the impugned order. Appeal is accordingly dismissed with no orders as to costs." **** 15. In the case of "Mobilox Innovative Private Limited vs. Kirusa Software Private Limited" in civil appeal number 9405 of 2017 ( [2017] ibclaw.in 01 S ..... 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