TMI Blog2023 (4) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... suit can not be relevant to find out pre-existing dispute because Section 8 Notice was issued on 12th November, 2019 but the attending facts and circumstances including meeting between the parties to settle the issue and the email dated 23.10.2019 sent by the Appellant itself indicate that there was issue regarding the rates and the corporate debtor was complaining about the rates as well as there was pre-existing dispute and the Adjudicating Authority did not commit any error in rejecting the Application. There is no ground to interfere with the Impugned Order - the Appeal is dismissed. - Company Appeal (AT) (Insolvency) No. 468 of 2023 - - - Dated:- 24-4-2023 - [Justice Ashok Bhushan] Chairperson And [Mr. Barun Mitra] Member (Tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor. However, it is seen from the records that the affidavit under Section 9(3)(b) was filed vide diary no. 991 dated 05.02.2020 by the operational creditor deposing that no notice was given by the corporate debtor in terms of Section 8(2)(a) of the Insolvency and Bankruptcy Code, 2016 nor any payment of the unpaid operational debt was made to the operational creditor. It is further deposed that no issues or concerns with respect to the delivery/quality of goods have ever been raised by the corporate debtor. Another contention raised by the corporate debtor is with respect to the sum of Rs. 9,82,835/- which was due to the respondent from the petitioner and a civil suit for recovery was filed and is pending before Ld. Civil Judge (Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19.10.2019 when a demand of Rs. 9,82,835/- was raised by the respondent corporate debtor after adjusting the higher rates/prices of Silica Sand charged by the petitioner-operational creditor. If at all petitioner has not received such legal notice, then there was no reason to reduce the rates vide email dated 23.10.2019 sent by the petitioner-operational creditor. It is further admitted fact that the meeting held between the parties on 12.11.2019 in which Mr. Bharat Chawla a Representative of the petitioner-operational creditor attended the meeting. Since the parties failed to arrive at some amicable settlement/resolution of disputes. Therefore, in tearing hurry petitioner sent the demand notice on 12.11.2019 itself through email whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dispute between the parties regarding operational debt. What has to be looked into is whether the defence raises a dispute which needs further adjudication by a competent Court. Disputes pertaining to contractual issues are not to be resolved in Section 9 proceedings. If we apply the test laid down in Mobilox by the Hon ble Apex Court to the facts of the present case, it is clear that the defence raised by the corporate debtor in their reply filed in Section 9 Application is not illusory or moonshine. The present is neither a case where there is undisputed debt for which insolvency can be asked by the appellant to be initiated. The Adjudicating Authority has, therefore, correctly applied the ratio of the Mobilox Judgment in dismissing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as our further considerations on rates are concerned, we do not accept any retrospective ideas on this. Further beyond 90 days if you agree to pay interest @ 18% and clear all dues above 90 days as on date, we may consider reductions which will have no longevity as it was and as the freight will increase/month of January/Months from 15th june to 15th Sept additional charges for mechanical drying @ Rs 600 will be charged. Please confirm so that we can send our offer along with validity. We will be sharing more order copies and photos of our works with you. Warm regards. 7. Learned Counsel for the Appellant submits that Appellant themselves has reduced the rate voluntarily and that can not be treated to be pre-existi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
