TMI Blog2022 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice of Demand Notice in details. Having perused the speed post tracking report, the Adjudicating Authority found that the notice which was sent to the Corporate Office of the Corporate Debtor at Gurgaon was duly delivered - After taking note of rules relating to service of Demand Notice, the Adjudicating Authority has rightly found no force in the contention raised by the Corporate Debtor that the Demand Notice was not delivered. Whether there was any pre-existing dispute raised during the stage of notice or whether there was any dispute on the date of filing the application under Section 9 of the IBC? - HELD THAT:- From material on record it is clear that notice under section 8(1) was sent to the Corporate Debtor by the Operational Creditor - It is also an admitted fact that the Corporate Debtor did not reply to the Section 8(1) notice and it follows therefore that the existence of dispute was not raised by the Corporate Debtor at the stage which it was obligated to do under section 8(2) of IBC on receipt of notice under Section 8(1) of the IBC - When no mention of existence of dispute was made by the Corporate Debtor, the statutory scheme of IBC entitled the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and initiated Corporate Insolvency Resolution Process ( CIRP in short) against the Corporate Debtor with immediate effect. Aggrieved by this impugned order, the present appeal has been preferred by the Ex-Director of the Corporate Debtor. 2. The brief facts of the case as brought forth by the Learned Counsel for the Appellant is that Explo Media Pvt Ltd., the Corporate Debtor/Appellant had entered into an understanding on 08.04.2019 with T D Hospitality, India LLP, the Operational Creditor/Respondent No.1 for creative outdoor advertisements where the design and logo was to be given by the Corporate Debtor as per the approvals/instructions given to them by clients and the said advertisement was to be printed by the Operational Creditor/Respondent No.1 using quality fabric, ink and colours. The Corporate Debtor had received an order from Air India Ltd. for printing and supply of disposable Head Rest Covers ( HRC in short) for two years. The HRC were to carry third party advertisement. Pursuant to this contract, the Corporate Debtor had received an order from a client, Cashur Drive, for supply of HRC with display of Ease my Trip . 3. The Learned Counsel for the Appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was a need to verify and substantiate the claim made by the Operational Creditor as other consignments were based on verbal assurances and arising out of verbal contracts. No bills or invoice for any delivery was ever sent by the Operational Creditor to the Corporate Debtor. The genuineness of the Airway Bill which has been relied upon by the Operational Creditor is questionable because the source and origin of such documents are not disclosed. Moreover, the ledger Account furnished by the Operational Creditor is unaudited and, therefore, lacks legal validity. 6. Refuting the above submissions, the Learned Counsel for the Respondent No. 1 contended that the Corporate Debtor with the sole intent of not making payment of their admitted debt, which had become due for some time, has made these misleading assertions. In terms of the letter dated 08.04.2019, the Corporate Debtor was to make 50% advance payment to the Operational Creditor at the time of placing the order and 50% against the inspection of goods. It was submitted that the Corporate Debtor initially did make the advance payments but after a short while informed the Operational Creditor that they were not in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. 9. We have duly considered the detailed arguments and submissions advanced by the Learned Counsel for both the parties and perused the records carefully. 10. The issue for our consideration is whether payment to the Operational Creditor/Respondent No.1 was due from the Corporate Debtor giving rise to an operational debt, and if so, whether a default has been committed by the Corporate Debtor/Appellant in respect of payment of such operational debt having already become due and payable and whether the said operational debt exceeds an amount of Rs. 1 lakh and is an undisputed debt. This examination would be in line with the test which has been laid down by the Hon ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Private Limited (2018) in C.A. No.9405 of 2017 (MANU/SC/1196/2017) (hereinafter referred to as Mobilox ) for the Adjudicating Authority while examining an application under Section 9, the relevant excerpts of which are as follows:- 25. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding Rs. 1 lakh? (See ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that out of the total sum of Rs. 65,30,168/- only an amount of Rs. 50,72,800/- was paid by the Corporate Debtor and the remaining balance has not been paid as yet. Since the Corporate Debtor on his own has admitted that there was an operational debt due and payable, it is a clinching factor and therefore there arises no ground to disagree with the Adjudicating Authority. There is also ample evidence that the Operational Creditor/Respondent No. 1 has from time to time sent reminders to the Corporate Debtor to clear the outstanding dues by sending e-mails on 04.12.2019, 14.12.2019, 06.01.2020 and 17.01.2020 besides exchanging chat communications in this regard over WhatsApp as placed at pages 46-56 in the written reply filed by the Respondent No. 1. On the other hand, there are no documents which have been put forth by the Corporate Debtor which show that they had denied these dues or that they had indicated any error in the due statement. Rather, the contents of chat messages as exchanged indicate that the Corporate Debtor sought time to make the payments which is again an implied admission of the debt. 13. Having failed to make the requisite payments, it is noticed that the Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Office, it should be treated to be valid service of notice under Section 8 and application under Section 9 on failure of payment, if filed after 10 days, is maintainable. 15. In terms of the decision referred to Supra, we are of the considered view that since the demand notice was delivered at the corporate office of the Corporate Debtor as well as on the email id of the director, therefore, in terms of Section 8 sub-section (1) of the IBC, 2016, the demand notice was duly delivered. Hence, we find, no force in the contention raised on behalf of the Learned Counsel appearing for the Corporate Debtor that the demand notice was not delivered . 14. We now come down to examine whether there was any pre-existing dispute raised during the stage of notice or whether there was any dispute on the date of filing the application under Section 9 of the IBC. The guiding principles have been laid down by the Mobilox judgment supra and it is relevant to refer to para 24 and 40 of the said Judgment which is detailed as hereunder: 24 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also an admitted fact that the Corporate Debtor did not reply to the Section 8(1) notice and it follows therefore that the existence of dispute was not raised by the Corporate Debtor at the stage which it was obligated to do under section 8(2) of IBC on receipt of notice under Section 8(1) of the IBC. When no mention of existence of dispute was made by the Corporate Debtor, the statutory scheme of IBC entitled the Operational Creditor to file an application under Section 9 and this is exactly the course of action followed by the Operational Creditor. 16. At the stage when the Operational Creditor moved an application before the Adjudicating Authority under Section 9, we notice that the Corporate Debtor has tried to protect his interests by raising the issue that the Operational Creditor had supplied sub-standard and defective goods and deliberately did not join mandatory inspection of goods supplied to evade admission of deficiency in services. From the papers on record and submissions made, we find no reasons to disagree with the Adjudicating Authority that the Corporate Debtor has failed to show any correspondence to establish that the Corporate Debtor had ever raised ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
