TaxTMI 
TaxTMI 
2017 (11) TMI 40
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....s of manufacture of papers like news print, coated duplex board, file board, writing paper etc. Applicant is engaged in the business of all kinds and classes of paper, paper board and paper pulp and supplying waste paper as raw material for manufacture of paper. Accordingly, Applicant delivered to the Corporate Debtor from time to time waste paper as per the Invoices raised. As per the terms and conditions in the Invoices different due dates are fixed for payment. As per the Invoices, in case of default in payment of amount within due date the Invoice amount shall carry interest at the rate of two per cent. Respondent failed and neglected to pay an amount of Rs. 1,26,26,479 under various Invoices which include interest payable at the rate of 2% per month. The said amount is due and payable by the Respondent. 3. Applicant issued Demand Notice dated 3rd March, 2017 in Form-3 to the Corporate Debtor. Corporate Debtor gave reply admitting the debt by letter dated 27th March, 2017. According to the Applicant, each Invoice had a particular date for payment. Therefore, Applicant filed detailed Working as to on which date debt fell due as per each Invoice as 'Exhibit E' to the Applicati....
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....a No.32, it is held as follows; "32. In view of provisions of I & B Code, read with Rules, as referred to above, we hold that an 'Advocate/Lawyer' or 'Chartered Accountant' or 'Company Secretary' in absence of any authority or the Board of Directors, and holding no position with or in relation to the Operational Creditor cannot issue any notice under Section 8 of the I&B Code, which otherwise is a 'lawyer's notice' as distinct from notice to be given by operational creditor in terms of section 8 of the I&B Code." 6.1(c) In the above said Judgement, the Hon'ble National Company Law Appellate Tribunal held that "in absence of any authority of the Board of Directors, and holding no position with or in relation to the Operational Creditor cannot issue any notice under Section 8 of the I&B Code." In the case on hand, the Applicant along with Additional Affidavit filed Resolution dated 7th February, 2017 whereby J. Sagar Associates were authorised to issue notice. The said Resolution is sufficient authorisation for the Applicant to issue notice under Section 8 of the Code to the Respondent. The very fact that J. Sagar Associates were authorised to issue notice, goes to show t....
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.... Applicant from the Bank does not relate to the period of default and therefore it cannot be taken into consideration. On the other hand, learned counsel appearing for the applicant contended that the Applicant filed copies of Bank statements from February to June 2017 issued by Oriental Bank of Commerce, Mumbai confirming no payment of operational debt is made by the Corporate Debtor and they are filed at Page No. 288. Respondent gave Reply Notice dated 27th March, 2017 wherein it is only stated that the Company is taking positive steps to revive the Company and the Company is going to the process of financial restructuring and therefore requested to drop the notice issued under Section 8 of the Insolvency Code. Even in the objections in the Further Affidavit, the Respondent did not dispute about the payment of operational debt except contending that 24% interest has been charged. 6.3(a) Moreover, Applicant filed copies of statements of account of the Applicant in Oriental Bank of Commerce, Mumbai for the period from February 2017 to June 2017 and the Certificate issued by the Banker relates to the period from 8th July, 2016 to 4.9.2017. The last Invoice is dated 15.1.2016 unde....
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....service or breach of representation or warranty. However, it is capable of being discerned not only from in a suit or arbitration from any document related to it. For example, the 'operational creditor' has issued notice under Code of Civil Procedure Code, 1908 prior to initiation of the suit against the operational creditor which is disputed by 'corporate debtor'. Similarly notice under Section 59 of the Sales and Goods Act if issued by one of the party, a labourer/employee who may claim to be operation creditor for the purpose of Section 9 of I&B Code, 2016 may have raised the dispute with the State Government concerning the subject matter i.e. existence of amount of debit and pending consideration before the competent Government. Similarly, a dispute may be pending in a Labour Court about existence of amount of debt. A party can move before a High Court under writ jurisdictions against Government, corporate debtor (public sector 19 undertaking). There may be cases where one of the party has moved before the High Court under Section 433 of the Companies Act, 1956 for initiation of liquidation proceedings against the corporate debtor and dispute is pending. Similarly, with regard ....
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....ng further if there is a genuine dispute raised before any court of law or authority or pending in a court of law or authority including suit and arbitration proceedings. Mere a dispute giving a colour of genuine dispute or illusory, raised for the first time while replying to the notice under Section 8 cannot be a tool to reject an application under Section 9 if the operational creditor otherwise satisfies the adjudicating authority that there is a debt and there is a default on the part of the corporate debtor." 6.4(d) In the case on hand, the Respondent already deducted the amounts towards the inferior quality of goods supplied for which it has got authority to do. Applicant claimed only the amount which is due to it after deducting the amount towards the lower quality of goods supplied. In fact, Respondent did not raise any dispute regarding the quality of goods supplied till the filing of objections. It is only for the first time Respondent raised the objections regarding the defective quality of goods supplied, more so after deducting the amounts representing the defective quality of goods. Therefore, the dispute raised by the Respondent for the first time in the objection....
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....re relevant have been omitted and therefore, Form-3 is invalid. 6.6(a) The columns which are deleted in Form-3 relates to the information such as securities etc. It is not even the case of Respondent that securities are given. Therefore, the deletion of certain columns that are not relevant in Form-3 cannot be said to be a ground to say that the notice is defective on the ground that some columns have been deleted. 6.7 As a last argument, learned counsel appearing for the Respondent contended that the Invoices enclosed with the Demand Notice are not the Invoices under which the amount has been claimed. 7. A careful perusal of all the documents filed along with the Application discloses that Annexures 'A, 'B' and 'C which are attached to the Demand Notice dated 3rd March, 2017 are placed on record along with the Demand Notice at Page Nos. 19, 21 and 23 respectively. 8. Applicant along with Application again filed the same documents describing them as 'Exhibits E, F and G' at Page Nos. 282, 284 and 285 respectively. A comparative reading of Annexures 'A', 'B' and 'C' which are at Page Nos. 19, 21 and 23 of the Application respectively completely tally with Exhibits 'E', '....