9911796707
TMI Blog2022 (9) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... share- capital of the company is Rs.5,02,25,000/-. 4. The total amount claimed by the Operational Creditor is Rs.58,78,873/- plus interest @18% from 31.08.2019 and the date of default is 05.03.2018. The Demand notice under section 8 of the Code was issued by the Operational Creditor on 13.11.2019. No reply was sent by the Corporate Debtor. 5. Submissions on behalf of the Operational Creditor: 5.1 The Operational Creditor is engaged in various businesses including distribution and supply of superior quality duplex board, paper reel and paper sheet manufactured by renowned vendors of the industry. 5.2 Upon various orders being placed by the Corporate Debtor over emails dated 24.11.2017, 03.01.2018, 12.04.2018 and 16.04.2018, the Operational Creditor sold and delivered various specifications of GSM papers to the Corporate Debtor. The said goods were received by the Corporate Debtor without raising dispute of any nature whatsoever. Accordingly, invoices were raised by the Operational Creditor which were also received by the Corporate Debtor without demur. However, the Corporate Debtor failed to make payments within the scheduled time of 7 days as agreed upon and as a result, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Creditor has relied on the following documents to support his claims: a. Demand notice in Form 3, being Annexure A; b. Tracking Report from India Post Website, being Annexure B; c. A copy of the Returned Envelope, being Annexure C; d. A copy of the email sent to the Corporate Debtor, being Annexure D; e. A copy of the email dated 24.11.2017, being Annexure F; f. Copies of invoices, being Annexure H; g. Copies of other letters, being Annexure J. 6 Submissions on behalf of the Corporate Debtor: 6.1 The applicant has suppressed the fact that in all the correspondences by and between the parties from the very beginning the email ID of the Corporate Debtor has been categorically mentioned as bkp1097.rediffmail.com. Even the documents annexed by the Operational Creditor/applicant shows the aforesaid fact. However, the Operational Creditor had sent the Demand Notice in Form No. 3 to two different email IDs i.e., [email protected] and [email protected]. 6.2 The email ID rkpukp2003agmail.com is the email ID of the statutory Auditor of the respondent who is not at all a party in the dispute between the Operational Creditor and Corporate Debtor. Further, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for continuous business transaction, the Corporate Debtor time to time made payments for supply of paper reels and Art boards, sometime which exceeds the billed Amount, and by this way the Corporate Debtor had already paid a sum of Rs. 2,46,00,000/ - (Rupees Two Crores forty six lakhs) against the different invoices raised by the Operational Creditor by excluding the excess bills for shortage of goods and excess rates, which were accepted by the Operational Creditor. 6.8 Further, the Corporate Debtor did not pay any amount against any particular bills and/or invoice, thus it is should not be construed that any payment has been made by accepting the purported increased rate any goods supplied by M/ s. Supreme Paper Mills Ltd. The copy of the bank statements of the Corporate Debtor in respect is annexed to the Reply affidavit and marked with letter "E". 6.9 Further, the rate for various supplies had not also been finalized by and between the parties as would be depicted from the email of the respondent dated 12.04.2018 and 16.04.2018. 7 Supplementary Affidavit on behalf of the Corporate Debtor: 7.1 The Corporate Debtor, vide supplementary affidavit dated 13.06.2022, has introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, the communication of the Demand Notice to said email id cannot be held as a valid delivery of the same. However, it is to be noted that the said email id is registered with the Registrar of Companies and the Operational Creditor, having notice of the said fact, has sent the Demand Notice to the above-mentioned email id. 8.6 Regarding the said issue, this Adjudicating Authority is satisfied that since the above-mentioned email id is registered with the ROC as the email-id of the company, the service of the demand notice to the said email id is valid. As such, the demand notice was successfully delivered to the Corporate Debtor and no reply was given by it. 8.7 At the same time, the fact that no reply to the demand notice was issued by the Corporate Debtor, would not prevent the Corporate Debtor from bringing on record facts to establish pre-existing disputes relating to the instant petition. 8.8 In this regard, we would like to rely on the decision taken by the Hon'ble NCLAT in the matter of M/s. Brand Realty Services Ltd. Vs. M/s. Sir John Bakeries India Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 958 of 2020] wherein the following was held: "[....] We thus ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Subsection (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing - i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code." (Para 29) The Apex Court, in Mobilox Innovations Private Limited (Supra) further held that: "...Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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