TaxTMI 
TaxTMI 
2019 (5) TMI 384
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....eciding to initiate the insolvency proceedings against the respondentcorporate debtor under the provisions of the Code and the rules framed thereunder. Copy of the Resolution is at Page 130 of the paper book. The Resolution authorizes Ms. Geeta Uppal, Director or Mr. Vedant Sanjay Uppal as Authorized Representatives of the petitioner-company to file the petition, verify the pleadings and to do all the necessary acts in the progress of the case. Ms. Geeta Uppal, Director, further gave the authorization letter in favour of Mr. P.D. Sharma/Mr. G.S. Sarin, Company Secretaries in Practice, partners of Sharma Sarin & Associates, Chandigarh and Mr. G.S. Pandey, Advocate, to represent the petitioner-company before the Tribunal. The authorization letter is at Page 132 of the paper book. At Page 26 of the paper book, is the affidavit of Mr. Vedant Sanjay Uppal, Director, in support of the contents of the application. 3. The petitioner is a company incorporated under the Companies Act, 1956 with authorized and paid up share capital of Rs.1,00,000 as per the master data, as at Page 137 of the paper book. The petitioner has its registered office at New Delhi. 4. The respondent-corporate d....
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....orate debtor. Since no payments were forthcoming from the corporate debtor, the petitioner issued demand notice dated 03.04.2018 in Form 3, as prescribed in Rule 5 of the Rules. Copy of notice is at Annexure A-5 (Colly). On receipt of notice, the respondent-corporate debtor vide reply dated 13.04.2018 raised a moonshine and bogus defence contradicting its own stand and actions. The corporate debtor has neither filed any litigation nor has any substantial reason to dispute the claim of the petitioner. 9. Out of the total amount of services rendered to the tune of Rs.1,70,36,250/-, the corporate debtor has paid an amount of Rs.43,78,910/- only and the balance amount in default is Rs.1,22,51,940/-. A sum of Rs.51,99,940/- has been added as interest @18% per annum upto 20.02.2018 and the total amount claimed in the instant petition is Rs.1,28,51,580/-. The operational creditor has also attached copy of ledger account of the respondent, being maintained by the petitioner as at Annexure A-4, showing the principal amount outstanding as Rs.1,22,51,940/-. Copy of demand notice sent by the petitioner is at Annexure A-5 and the reply received from the respondentcorporate debtor is Annexure....
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....100010030. Therefore, after adjusting the actual payment already made, the operational creditor is liable to refund a sum of Rs.20,11,715/- with interest @18% per annum. It is further stated in the meeting between the parties held on 21.02.2018, when the operational creditor offered the corporate debtor to waive the entire amount of Rs.13,55,000/- against invoice No.100010029, which the respondent-corporate debtor rejected, being not a rational adjustment. 14. The petitioner-operational creditor also filed the rejoinder, vide Diary No.425 dated 28.01.2019, reiterating the stand taken in the petition and denying the defence version. 15. I have heard the Authorized Representative of the petitioner and learned counsel for the respondent and have perused the records with their able assistance. 16. The Authorized Representative of the petitioner vehemently contended that the work was performed by the petitioner upto 11.12.2017 and 29 total invoices were issued out of which 13 were paid without any demur or dispute and therefore, there is no basis for the respondent to challenge the rate charged by the petitioner for the work in the rest of the invoices. It was further submitted....
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....sp; xx xx xx Consequent to our meeting dated 21st February, 2018, convened on your request, we had reiterated the issue at hand and put forward our reservation on the rates charged and the amount already paid to you. We had made it clear that we were open to a reasonable proposal. In response, you offered to waive the entire amount of Rs.13.55 lacs in the said invoice dated 05 February, 2017. However, such offer was not acceptable to us as it was an insufficient measure and no rational adjustment was made towards amounts reflecting in your previous invoices. Hence, you agreed to respond after sometime with a reasonable proposal to settle the issue of the amounts reflecting on invoices and the excess payment already made by us to ....
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....sp; xx xx xx " 21. The e-mail dated 16.03.2018 is in response to the e-mail sent by the petitioner dated 26.01.2018 which is a trailing e-mail at page 112 of the paper book. The petitioner has stated in this e-mail dated 26.01.21018 as under: - "over the last few weeks, I have personally gone through the entirety of 1000+ mail correspondence between Koovs and Inqnest and I am shocked at the complete fabrications and outright lies that have been presented in your latest mail, all of which we deny at the outset. It may please be recalled that all our invoices are based upon rates duly acknowledged by your company against the work orders while releasing our bills for the months of August ....
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....inued assigning work to the petitioneroperational creditor under good faith and an understanding that the rates will be rationalized reasonably in the meantime. 23. I am of the considered view that the Adjudicating Authority cannot go into the issue as to whether this defence is correct or it may or may not be ultimately accepted, but such questions have to be decided in a full trial before the Civil Court. Simply, because some of the invoices paid by the respondent cannot rule out the possibility of a dispute in respect of unpaid invoices where the dispute was raised way back on 03.01.2018, much before the sending of the demand notice under Section 8 of the Code. 24. The principle of law on the subject has been well settled by the Hon'ble Supreme Court in (2018) 1 Supreme Court Cases 353; Mobilox Innovations Private Limited Versus Kirusa Software Pvt. Ltd. and it was held by Hon'ble Supreme Court as under:- "It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application Under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor o....