TaxTMI 
TaxTMI 
2017 (7) TMI 42
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.... Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 (for brevity the 'Rules'). The respondent is a company incorporated on 13.08.1981 with registered office at 181, Sector 3, Bawal Growth Centre, Bawal-123501, Haryana and, therefore, the matter falls within the territorial jurisdiction of Chandigarh Bench of NCLT. The company has executed the power of attorney Annexure 8, by virtue of the resolution of the Board of Directors dated 20.11.2013 authorising Mr. Pankaj Sachdeva to institute and defend the civil suit and sign and verify the plaint including winding up petitions, pleadings etc. and to do all other legal matters before any Court/Tribunal including NCLT and NCLAT etc. from the lowest to the highest level and engage Advocates and Technical counsel for conduct of the proceedings. There is an affidavit of Mr. Sachdeva aforesaid in support of the contents of the application. Mr. Sachdeva has given 'Vakalatnama' in favour of Mr. Kanwalvir Singh Kang, Advocate through whom the instant petition has been filed and the address of Mr. Kang is stated to be the address for correspondence purposes in respect of the operational cred....
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....e-corporate guarantee dated 23.12.2014 and all [he four invoices were also sent to the respondent-corporate debtor. The notice further states that if the respondent-corporate debtor raises the existence of dispute or the amount of unpaid operational debt in default is paid, the respondent was asked to provide the same within 10 days of receipt of the letter of the pendency of the suit or arbitration proceedings in relation to such a dispute filed before the receipt of this notice. With regard to the other requirements of Section 8 of the 'Code' dealing with the demand notice, the particulars have also been mentioned in the notice. Along with Annexure-7, the petitioner has also attached postal receipt of the despatch of the notice by a registered post on 07.02.2017 and the track report of the postal department showing that the item was delivered on 13.02,2017. In the affidavit of Mr. Pankaj Sachdeva the authorised representative, it is stated that no notice was served by the corporate debtor raising a dispute in relation to the existence or amount of the unpaid operational debt due to the operational creditor. 7. The matter was listed before the Adjudicating Authority for....
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....7 for arguments and the petitioner was directed to make the compliance by 19.05.2017. 11. The petitioner-operational creditor made the compliance by way of affidavit of Mr. K.S. Kang, Advocate and attached a Bank certificate Annexure A-10 (Colly) packing list Annexure A-11 and Bill of lading Annexure A-12 (Colly). 12. Such applications are to be decided within a period of 14 days from the date, when the matter was first listed before the Bench. By excluding 10th May, 2017, which was a holiday and weekly off days falling on 13th, 14th, 20th and 21th of May, the matter is, therefore, considered as being disposed of within 14 days. Anyhow, even the period from 08 05.2017 to 12.05.2017 can be excluded because the petitioner's counsel had sought time on 08.05,2017 to place on record the reply, which was received from the respondent-corporate debtor after filing of the application in the registry. The copy of reply dated 28.03.2017 sent by the respondent was filed along with the application and affidavit of Mr. K.S. Kang, Advocate. 13. I have heard the learned counsel for the petitioner-operational creditor and have carefully perused the record with his able assistance. 1....
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....ting Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority." In the instant case, the petitioner has not proposed the Interim Resolution Professional. 16. The first question that requires discussion in the instant case pertains to the issue raised in terms of clause (d) of sub-section 5 (i) and (ii) of Section 9 of the Code, as enumerated above. 17. The information utility has not yet been constituted. The point for determination is whether the receipt of reply, by the petitioner from the respondent/corporate debtor, to the demand notice, would amount to receipt of notice of dispute, thereby resulting in rejection of the application. 18. The term 'dispute' is defined in sub-section (6) of Section 5 of the Code as, including 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." The aforesaid definition is, therefore, inclusive ....
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....uding seaworthy packing within 11 months after signing this agreement. Even, according to this term, the entire consignment was to be delivered by November, 2015, In view of the above, I am of the considered opinion that the respondent has raised a valid dispute regarding huge delay in delivery. 22. It is further the contention of respondent-corporate debtor in the reply dated 28.03.2017, that as per clause 6 of the agreement, it was specifically agreed that prior to despatch, respondent-corporate debtor was entitled to verify and inspect the equipment (mill), but the operational creditor in utter violation of the understanding, despatch the consignment dated 23.06.2016, for Euro 5,600,000.00 to the respondent-corporate debtor without pre-inspection and verification. It is further stated that the consignment was to be despatched directly from the Port at South Africa to the respondent, but without the knowledge of the respondent, the operational creditor first despatched the same to themselves at Germany and thereafter without pre-inspection of the same despatched it to the respondent. 23. Learned counsel for the petitioner-operational creditor vehemently contended that the r....
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.... India. EURO 5.400000,- (five million four hundred thousand EURO only) of the total price of this agreement, shall be paid latest 360 days after signing of this agreement, against presentation of the following documents: - Packing list - Original invoice - Bill of Lading." 25. So, from the above, it seems that the Mill was to be despatched, repaired and packed in Pietermaritzburg/Soulh Africa, from where ft was transported to Mumbai (India) The perusal of the bills of lading Annexure A-12 pages 105 to 115 along with the affidavit of Mr. K.S. Kang, Advocate would show that all the consignments before 18.05.2015 were loaded from Durban in South Africa and despatched directly for Mumbai. There is no indication in these bills of lading that the consignment was first sent to Germany for any logistic reason and then to shipped to India. 26. However, the bill of lading dated 02.11.2015 in respect of the consignment of the third and final partial shipment, it is quite clear that this consignment was first sent from Durban (South Africa) to Hamburg (Germany) and the same consignment after more than one month was sent from Hamburg (Germany) to Mum....