TaxTMI 
TaxTMI 
2017 (12) TMI 397
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....016 (In short, 'IB Code, 2016'). 2. Before proceeding with this matter, this Adjudicating authority feels that it would be proper to make a note of background facts for the purpose of determination of this petition. 3. The petitioner was earlier known as Navratna Energy Cable Private Limited subsequently changed to Plaza General Cable Energy Private Limited and then to General Cable Energy India Private Limited and now its present name CMI Energy India Private Limited with effect from 09.03.2017 and copies of the fresh Certificate of Incorporation Consequent on Change of name have been filed with Form-5 as Annexure A1 to A4. 4. Shri Shankarnarayana, the learned counsel appearing on behalf of the respondent submitted that the Petitioner is engaged in the business of manufacturing cables and the respondent had placed various purchase orders during the year 2012-13 for the supply of cables to its project sites. The Petitioner had supplied the cables as per the purchase orders and also raised invoices towards the value of the same. Towards supplies, the respondent was also required to furnish required C-Forms as per the then Central Sales Tax Act but the same were not furnishe....
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....at he has accepted them or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them ". Therefore from the reading of the section and from the facts of this case, it is clear that the respondent had accepted the goods and not intimated the petitioner that he has rejected them and only to wriggle out from the payment obligation, they have raised the issue of warranty in the said reply notice. 7. Further, with regard to the warranty, the respondent neither raised any demand of express warranty prior to the said reply notice nor sought for replacement of goods supplied to the respondent. The respondent had accepted the supply of goods, admitted the outstanding dues and there is no existence of any dispute in relation to the goods supplied to the petitioner. Since the respondent had failed to comply with the said demand notice, the petitioner was left with no other option except to file a winding up petition before the Hon'ble High Court. 8. It is also submitted that subseq....
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....te" as contemplated under the IB Code, 2016. The respondent's counsel further submitted that this argument for the petitioner is untenable and has in fact already been rejected by the Division Bench of NCLT Chennai Bench in Emerson Process Management Chennai Ltd. v. Shriram EPC Ltd. TCP/135/(IB)/2017 wherein it was held that a pending suit, irrespective of whether the same has been instituted by the creditor or debtor is by itself a bar to maintaining a petition filed u/s 9 of the IB Code, 2016 and the instant petition ought to be dismissed in view of the precedent set down by the Adjudicating Authority. 11. Further, it is submitted that when the statutory notice under section 433(l)(e) was sent on 15.09.2016, the Respondent herein vide reply dated 17.10.2016, raised several issues disputing the amount claimed in the statutory notice. The notice is a matter of record and as such, the disputing of debt in the reply notice itself constitutes a dispute for the purpose of the IBC. In this regard, the learned counsel paced his reliance on a judgment passed by the Hon'ble NCLAT in MCL Global Steel (P.) Ltd. v. Essar Projects India Ltd. MANU/UL/0031/2017. It is submitted that the me....
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....lant of General Cables has been closed and it would not be possible to give warranty from the Indian Company. It was suggested that they can give warranty from the Holding Company. Since the holding Company is also a shell Company the same was unacceptable as it was clearly discussed that any warranty will be from a Company with sufficient experience acceptable to the end customer. The Respondent Company has also clearly indicated that in case giving of warranty was not possible, they are free to take away the cables within six months from the date of the meeting. But till date suitable manufacturer's warranty from an approved manufacturing firm has not been given and the cables for which manufacturer's warranty has not been given have also not been lifted and accordingly the supplies made by GC India has been treated as rejected and as such the Respondent Company is not liable to pay any amount to M/s. General Cable Energy (India) Pvt. Ltd. This aspect has been made clear in the Reply Notice dated 28.04.2016 given by the respondent. 15. The learned senior counsel for respondent further submitted that due to closure of manufacturing activity of the Petitioner Company in India, R....
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....iled any suit or initiated arbitration proceedings within the meaning of Sec. 5(6)(a)(ii) to (c) of the IBC Code in the instant case. From the reading of the Sec. 8(2)(a) of the IB Code, 2016 also, one can understand that on receipt of the notice from the operational creditor, the corporate debtor must bring it to the notice of the operational creditor existence of a dispute, if any and record the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoices in relation to such dispute, which would only mean that the corporate debtor should have initiated suit or arbitration proceedings against the operational creditor and it cannot be vice versa. Therefore, from the perusal of the said section, it can be inferred that the suit or arbitration proceedings initiated by the petitioner/operational creditor cannot be termed as dispute. 19. The learned senior counsel for the petitioner further submitted that the winding up petition or initiation of corporate insolvency resolution process is not only for the benefit of the Petitioner/Operational Creditor but also for the general body of the creditors, contributors etc., therefore, the present petit....