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TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 680
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....onsideration of the application is the following :- (a) The corporate debtor and the operational creditor entered into a High Sea Sales agreement dated 26/02/2016. Pursuant to the terms of the agreement the operational creditor supplied and delivered Indonesian Steam Coal (Non-coking) to the corporate debtor. The operational creditor raised invoice dated 26/02/2016 for an amount of Rs. 9,12,21,228/- (Rupees Nine Crores Twelve Lakhs Twenty-one Thousand and Two Hundred Twenty-Eight only). The corporate debtor on receipt of the goods paid an amount of Rs. 6,73,59,839/- (Rupees Six Crores Seventy Three Lakhs Fifty Nine thousand and Eight hundred Thirty-Nine only) and failed to pay the balance amount to the tune of Rs. 2,38,61,389/- (Rupees Two Crores Thirty Eight Lakhs Sixty One Thousand and Three Hundred Eighty Nine only). (b) Being failed to pay the balance amount despite demand issued demand notice (Annexure E) dated 03/11/2017 demanding Rs. 3,07,21,702/- (Rupees Three Crores Seven Lakhs Twenty One Thousand and Seven Hundred Two only) including interest @ 18% per annum. (c) The corporate debtor was in receipt of the demand notice but did not send a reply nor paid the amount wi....
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....eply affidavit proves correspondences were exchanged between the parties. As per the e-mail dated 10/12/2016 the operational creditor had admitted and confirmed that goods of about Rs. 1.76 Crores is sub-standard and corporate debtor need not pay for the same. Upon giving such credit for inferior quality of goods the corporate debtor issued two cheques for an amount of Rs. 1 Crore (Rupees One Crore only). That cheques were dishonoured. Upon dishonour of the cheques the corporate debtor paid a sum of Rs. 40 Lakhs (Rupees Forty Lakhs only) to the operational creditor and shows its willingness to pay the balance amount as mutually arrived at crediting to the damage suffered by it but the operational creditor raised a frivolous demand of Rs. 3,07,21,702/- (Rupees Three Crores Seven Lakhs Twenty One Thousand and Seven Hundred Two only). Upon said contentions the corporate debtor prays for rejection of the application filed by the operational creditor. 4. A rejoinder has been filed by the operational creditor denying the contentions of the corporate debtor in the reply affidavit and contended that due to the fault on the part of the corporate debtor, who delayed payment, made the qualit....
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.... u/s. 8(1), the Ld. Counsel appearing on the side of the corporate debtor submits that Annexure B annexed to the application, i.e., track report of the consignment sent to the corporate debtor proves that the article was dispatched and it does not prove delivery. The track report of consignment produced along with the application is not a proof to prove that the article issued in the name of the corporate debtor has been served upon the corporate debtor as alleged. It never proves that the consignment sent as per the Consignment Number has been delivered to the addressee. On the other hand it refers to a pack dispatched to New Alipore Calcutta RMS (CRC) on 08/11/2017. No proof produced to prove that it has been delivered to the addressee. 10. When the track report regarding delivery of consignment copy referred to at the time of hearing, Ld. Counsel appearing on the side of the applicant/operational creditor submits that it may be due to the fault of Postal Authority and he showed his inability to bring any supporting evidence from the Postal Authority to prove that the consignment has been really delivered to the corporate debtor. So the question is whether there is proof of deli....
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....e case in hand. At the time of hearing I am inclined to grant time to produce proof. However, the Ld. Counsel for the applicant submits that he could not produce further proof from the Postal Authority at present, because there is undue delay in approaching the Postal Authority. Since the Ld. Counsel for the applicant/operational creditor expressed his inability to produce supporting document proving delivery of the consignment as referred to in Annexure B to the application, time is not granted for production of proof to prove delivery of demand notice. Hence I hold that the applicant failed to prove the compliance as required under Section 9(5) of the Code. 13. Coming to the next contention that there was pre-existing dispute and dispute is still existing and therefore, claim for the amount demanded is not liable to be paid by the corporate debtor is also found has some force. In the rejoinder filed by the operational creditor, it is admitted that the quality of the goods supplied was diminished and there was an understanding in that regard and the corporate debtor has been given a credit of Rs. 1.76 Crores with liberty to pay Rs. 1 Crore (Rupee One Crore) as remaining balance. ....
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....ty of the goods was diminished only because of the delay on the part of the corporate debtor. So for whose fault the delay, if any, was there in receiving the goods by the corporate debtor is not at all a question germane for consideration, because Annexure A (E-mail) to the reply affidavit confirms the claim of the corporate debtor that the goods supplied was of bad quality material. Admitting the claim of the corporate debtor that the goods supplied was of bad quality material the operational creditor agreed to give discount and interest will be waived and agreed not to take any legal action provided the 2 (two) cheques issued by the corporate debtor for payment of Rs. 1 (one) Crore as agreed was not honoured. Admittedly, that cheques issued in terms of the understanding has been dishonoured. The operational creditor has filed an application u/s. 138 of the Negotiable Instruments Act before the Metropolitan Magistrate's Court, Bhoiwada, Dadar is pending for consideration. It is also admitted that the corporate debtor has paid Rs. 40 (forty) Lakhs out of Rs. 1 Crore while the criminal prosecution is pending. 17. Ld. Counsel for the corporate debtor, at this juncture, submits ....