TMI Blog2023 (6) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the Respondent / Corporate Debtor (filed by the Appellant / Petitioner / Operational Creditor), per se is not maintainable. On a careful consideration of the contentions advanced on either side and when the Appellant / Petitioner / Operational Creditor, in the instant case, has not proved, to the satisfaction of this Tribunal, as to the Aspect of Debt and Default, committed by the Respondent / Corporate Debtor (ofcourse, based on the facts and circumstances of the instant case, which float on the surface), the conclusion, arrived at by the Adjudicating Authority (NCLT, Bengaluru Bench), in dismissing CP (IB) No. 49 / BB / 2021 (preferred by the Appellant / Petitioner / Operational Creditor), is free from any legal infirmities. Consequently, the instant Appeal fails. Appeal dismissed. - IA No. 1106 / 2022 in Company Appeal (AT) (CH) (INS.) No. 436 / 2022 - - - Dated:- 7-6-2023 - [Justice M. Venugopal] Member (Judicial) And [Shreesha Merla] Member (Technical) For the Petitioner / Appellant : Dr. K.S. Ravichandran, Practising Company Secretary ORDER (Physical Mode) Justice M. Venugopal, Member (Judicial): IA No. 1106 / 2022 in Comp. App (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther mentioned therein under the payment terms, sixty days from the date of Invoice . However, the Respondent Corporate Debtor issued the Annexure II(G) Purchase Order dated 25.09.2018 for a total amount of Rs.9,52,83,286/-, out of which the NRE Costs are Rs,6,21,055/- and under the payment term sixty days from the date of Invoice . It is not in dispute that since the products were not supplied to the Respondent - Corporate Debtor, no Invoice was issued by the Petitioner and hence the payment term of 60 days from the date of Invoice has not relevance. The only remaining issue is that the Petitioner is claiming that the Respondent Corporate Debtor was required to pay an advance amount of Rs.2,28,62,374.63/- and whereas the Respondent-Corporate Debtor is denying liability to pay any advance amount. The Respondent-Corporate Debtor further contending that even if the NRE cost of Rs.6,21,055/- is to be treated as the advance payment, since the same is less than the minimum threshold of Rs.1 Crore, the C.P. is not maintainable. The Petitioner failed to show any document where under the Respondent Corporate Debtor agreed to pay any advance amount of Rs.2,28,62,374.63 as claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling Purchase Orders , wherever possible. 8. The Learned Counsel for the Appellant points out that the conduct of the Respondent / Corporate Debtor , was manifestly cleared and the Default on its part, to pay the Operational Debt , and therefore, the Order for Corporate Insolvency Resolution Process , should have been passed by the Adjudicating Authority / Tribunal , in respect of the Section 9 Application, projected by the Appellant / Petitioner / Operational Creditor. 9. The Learned Counsel for the Appellant / Petitioner / Operational Creditor contends that the Respondent / Corporate Debtor, provides Technology Services , to one Himachal Futuristic Communications Limited ( HFCL ), which had participated and won a tender floated by Bharat Sanchar Nigam Limited ( BSNL ), for mobile network rollout in the State of Arunachal Pradesh and two other districts of Assam. Post tender evaluation, HFCL, which was awarded the tender. 10. It is the stand of the Appellant that HFCL , had issued a Purchase Order , in favour of the Respondent , who inturn issued a Purchase Order , upon the Appellant , on 25.09.2018, for the procurement and supply of PCB and its Compone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovt specific (PMA). Please guide us on how to take forward this relationship to next level. Further, here I would like to inform you that we had a meeting with SFO Bangalore team last week 29th Jan, 2020 about this new project and resolution to old project / issues of in-stock components earlier procured by SFO. 15. The Learned Counsel for the Appellant, takes a plea that merely by saying in their email dated 04.02.2020 that issues will be resolved, does not mean there are pre-existing dispute to warrant a rejection of an Application, under Section 9 of the Code and in fact, the Dispute , must be of such nature that relates to foundation or subject matter of the Claim . 16. The Learned Counsel for the Appellant, refers to the Definition of Section 5 (6) of the I B Code, 2016, under the caption Dispute , meaning, as under: Dispute , includes a suit or arbitration proceedings relating to (a) the existence of the amount of debt (b) the quality of goods or service or (c) the breach of a representation or warranty 17. The Learned Counsel for the Appellant points out the Judgment dated 12.12.2022 of this Tribunal , in the matter of Mr. Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that Section 3 (6) defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default of Rs. 1 lakh or more (Section 4) occurs. 15. Therefore, it is clear that when the Respondent has disputed the amount, as the amount is more than Rs. 1 lakh, the application under Section 9 cannot be rejected. 20. The Learned Counsel for the Appellant cites the Judgment of this Tribunal dated 13.12.2022, in the matter of Mr. V. Venkata Sathyanarayana, Andhra Pradesh v. M/s. Pattabi Enterprise, Karnataka and Another, wherein, at Paragraph 27, it is observed that the Defence , to be taken by the Corporate Debtor , in a given case, cannot be namesake one / moonshine one or an illusory one . 21. While concluding, the Learned Counsel for the Appellant, prays for allowing of the instant Comp. App (AT) (CH) (INS.) No. 436 of 2022, by setting aside the impugned order dated 25.05.2022, in CP(IB) No. 49 / BB / 2021, passed by the Adjudicating Authority ( National Company Law Tribunal , Bengaluru Bench). Discussions: 22. Before the Adjudicating Authority , the Appellant / Petitioner / Operational Creditor (filed CP(IB) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst an Invoice and within 60 days of such Invoice, and further that, in the absence of any Invoice from the Appellant / Operational Creditor, no amount became payable and therefore, no Amount fell due for the purported demand issued against the Respondent. 28. The Respondent, before the Adjudicating Authority / Tribunal . had placed reliance on the Payment Terms , contained in the Quotation , dated 12.09.2018, Bearing No. VA 20001 0009 QTY 1000 Nos., issued by the Operational Creditor, and the same, runs as under: SFO will submit invoices to Customer upon shipment of Products. Each invoice will, at a minimum, reference the customer purchase order number, part number, unit price and total price. Payment terms are applicable from the date of SFO s invoice to Customer. Customer agrees to notify SFO within 10 (ten) calendar days of any incorrect invoices received. On any correct invoices not paid by the due date, Customer shall pay finance charges at the rate of 3% per month. Payment terms for NRE are 100% advance with PO. 29. The stand of the Respondent / Corporate Debtor, vide its Statement of Objections , is that, it was the obligation and contractual d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with an ulterior motive , to harass and make unlawful gains , from the Respondent . Also, there is no express acknowledgement or no acquiescence , from the Respondent / Corporate Debtor , and in short, the Respondent , does not owe any Sums of Money , to the Appellant / Operational Creditor , and the same is Disputed . 33. As far as the present case is concerned, the Appellant / Petitioner / Operational Creditor , had issued a Quotation , dated 12.09.2018 to the Respondent / Corporate Debtor , wherein, it was mentioned that out of the Total Cost of the Products , the Total Advance Payment , required (need customer support) was $3,17,880/- (Rs.2,28,62,374.63/-). 34. As per the Purchase Order dated 25.09.2018, issued by the Respondent / Corporate Debtor , for a total Sum of Rs.9,52,83,286/-, out of which, the NRE Costs PCB Tooling was INR 621,055/- and the Payment Term , was 60 days from the Date of Invoice . 35. Because of the fact that the Products, were not supplied to the Respondent / Corporate Debtor , no Invoice, was issued by the Appellant / Petitioner / Operational Creditor , and hence the Payment Term of 60 days , from the Date of Invoice , c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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