TaxTMI 
TaxTMI 
2019 (7) TMI 963
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....inerals Ltd., under Section 9 of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as "the Code"] read with Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to trigger Insolvency Resolution Process against M/s. Shree Rama Newsprint Limited (hereinafter called as respondent/corporate debtor). 2. That, the applicant/operational creditor M/s. Mohit Minerals Ltd. is a limited company incorporated on 29th July, 2004, having its registered office at 19-20, First Floor, TDI Mall, Moti Nagar, New Delhi - 110 015 and having identification number U14292DL2004PLC127951 is engaged in the business of supply of (non-coking) Coal of Indonesian origin. 3. That, M/s. Shree Rama Newsprint Limited is ....
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....t the procurement of material from a third party. 6. That, on 31.10.2016, the applicant raised two invoices on the corporate debtor, one amounting to Rs. 80,527/- dated 31.10.2016 and another invoice amounting to Rs. 7,869/- dated 31.10.2016. That, corporate debtor raised debit note dated 31.12.2016 of Rs. 49,50,000/- upon the operational creditor towards freight charges of coal and the same was confirmed by corporate debtor by another debit note dated 06.01.2017. That, on 16.02.2017, operational creditor raised three invoices on the corporate debtor amounting to Rs. 3,16,250/-, Rs. 5,10,520/- and Rs. 46,05,000/- towards supply of materials. That, final invoice dated 23.02.2017 for Rs. 2,44,985/- was raised upon the respondent by the appli....
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....n inter alia stating that in lieu of the cancellation of order dated 09.08.2016, the respondent had placed order dated 14.11.2016 on M/s. Agarwal Coal Corporation P. Ltd. (AGCPL) for the supply of 3000 M.T. coal @ Rs. 6050/- per M.T., wherein, the differential amount between the orders placed on the applicant and AGCPL comes to Rs. 1640/- per M.T. and the amount with the required quantity of goods being 3000 M.T. works out to Rs. 49,50,000/-. The said amount is the precise amount that has been debited by the respondent from the applicant. There is/are no dues. 10. It is further submitted that there is pre-existing dispute. The applicant filed the present petition on the basis of assumption and presumption without appreciating the evidences....
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....sides. Findings: 14. On perusal of the material available on record it is found that, it is an admitted fact that the applicant failed to supply 3000 M.T. Coal as per order of the corporate debtor dated 09.08.2016 as a result of which the respondent was forced to procure the material from other sources at a higher price. It is pertinent to mention here that as per one of the conditions of the purchase order, in case, if the applicant fails to supply the material as per the dispatch schedule given by the respondent, the respondent have the right to procure the material from the open market at the risk and cost of the applicant and the amount of difference in the rate will be debited to the account of the applicant. Accordingly, the respond....
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....ion or warranty 16. On perusal of the records and correspondences of both the sides (as annexed) it is revealed that not only there was/were disputes prior to filing of the instant petition/application but also there was a dispute prior to issuance of demand notice under Section 8 of IB Code. 17. After referring to Section 8 and the judgment in Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. 2018 (1) SCC 353 went on to hold that, what is important is that the existence of dispute and/or a suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of demand notice or invoice as the case may be. 18. The Adjudicating authority, therefore, while examining an application under Section 9 of the Act, wi....