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TMI Blog2023 (3) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... na Care Overseas Pvt. Ltd. (Corporate Debtor) was dismissed holding that there were disputes existing between the parties prior to the issuance of the Demand Notice. 2. The facts giving rise to the instant Appeal are as follows: i) That Respondent Company came to be incorporated on 20.12.1999 under the Companies Act, 1956, having its Registered Office as mentioned in Memo of Parties bearing CIN No. U7414(U)L1999PTC102884. The Appellant supplied goods (P.P. Sacks) to Respondent Company. During the course of business, Appellant raised invoices upon Respondent Company from 19th November, 2015 to 29th December, 2015. On account of aforesaid invoices raised, Respondent Company made part payments thereby leaving an amount of Rs. l0,96,184/- (Rupees Ten Lacs Ninety-Six Thousand One Hundred and Eighty-Four Only) due and recoverable. This debt fell due on 1st February, 2016. The Appellant maintains a ledger of Respondent Company in the ordinary course of business. The Sub-ledger as maintained was duly acknowledged by Respondent Company for the period 1stApril, 2014 to 31st March, 2016 which would indicate that an amount of Rs.10,96,184/- (after discount) was duly acknowledged to be due a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by another Operation Creditor namely Jaswant International Pvt. Ltd., The Adjudication Authority admitted the Petition, initiated CIRP and appointed Mr. Piyush Moona as IRP. In view of the above Application/Petition under Section 9 of the IBC having been admitted, the Adjudicating Authority by way of its order dated 15.02.2019 while observing that another CIRP since cannot be initiated against Respondent and that Appellant could file its claim before IRP, granted liberty to Appellant to file an appropriate Application for revival of its Application/Petition, in the event, for any reason the order dated 31.01.2019 is CP(IB) 1060/ND/2018 is set aside. The Appellant accordingly submitted its claim on 01st March, 2019 in requisite Form B with the IRP. The IRP by way of its email dated 08.03.2019 (Annexure A-10 at page 73 of the Appeal) informed the Appellant that its claim is admitted for an amount of Rs.18,92,534/-. v) On 12th July, 2019, a Settlement Agreement came to be arrived at amongst Operational Creditor namely Jaswant International Pvt. Ltd. and Respondent and consequently CA No. 228/2019 in CP(IB) 1060/ND/2018 under Section 12A of the IBC for withdrawal of CIRP came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when there was no dispute as regards goods supplied and goods having been accepted. 4. It is further submitted that the Adjudicating Authority failed to consider that reliance placed by Respondent on alleged emails was just an afterthought in order to evade the liability to pay. Further, also failed to consider or deal with the fact that if emails of Respondent dated 07.08.2014, 27.03.2015, 01.02.2016, 25.03.2016 and 08.04.2016 were of any following substance: * Why would Respondent on 06th April, 2016 confirm the ledger balance? * Why on 31.03.2016 Respondent's ledger would show Rs. 10,96,184/- payable? * Why on 28th April, 2016 Respondent would issue Sales Tax Forms if Goods were sub-standard or rejected by the buyer of Respondent? 5. It is further submitted that the Appellant has placed on record ledger for the period 01.04.2014 to 31.03.2015 and 01.04.2015 to 31.03.2016. In which it would appear that the said ledger were printed on 06.04.2016 and the Corporate Debtor after taking discount has reconciled the amount by putting its stamp and signatures. Further, the Corporate Debtor has again made an endorsement confirming the amount to be due and has put its stamp. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." Further, the decision of the Hon'ble Supreme Court of India in Mobilox (Supra) has been followed in catena of decisions. In "Company Appeal (AT) (Insolvency) No. 738 of 2018 decision dated 24.01.2019, Mr. Dingo Ku Vs. M/s. Suntech Infra Solutions Pvt. Ltd., Para 10", it has been laid down that a communication showing delay in delivery of project and the loss sustained by the Corporate Debtor amounts to a pre-existence dispute and an application under Section 9 of the IBC is not maintainable. The ratio laid down in the above cases, is clearly applicable in the facts of the present case for the following reasons: * There is a dispute relating to timely delivery and quality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on following decisions : * In A. Muthuswamy Vs. G. Ayyappan, 2008 SCC Online Mad 81, Para 6, the Hon'ble Madras High Court has held that where the statutory notice is returned unclaimed, it does not amount to valid service. * In Anil Raj Vs. Integrated Finance Co. Ltd., 2005 SCC Online Ker. 3, Para 6 and 7, the Hon'ble Kerala High Court has held that mere dispatch of notice cannot be equated with service of notice, particularly when, the reason for non-service is not attributable to the other party. * The Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 194 of 2019, M/s Krystal Integrated Services Pvt. ltd. Vs. M/s Indiaontime Express Pvt. Ltd., Para 2 and 9, decision dated 12.07.2019 has held that return of the notice with remarks "left", even if the notice is issued at the correct address, is not a valid service for the purposes of Section 8(1) of the IBC. * The Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 272 of 2018, Sh. Sharad Kesarwani Vs. M/s Planetcast Media Services Limited & Anr., Para 5, decision dated 07.08.2018, has held that where the office is found locked and sealed on account of action by an authority, service of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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