TaxTMI 
TaxTMI 
2018 (11) TMI 1665
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....estic movement of goods/ cargo. 3. The Operational Creditor issued a demand notice dated 29th May, 2017 under Section 8 of Insolvency & Bankruptcy Code, 2016, NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH C.P. 1570/IBC/2017 stating that the Corporate Debtor is liable to pay sum of Rs.16,48,721.98/- to the Operational Creditor which till date remained unpaid despite repeated requests. The operational Creditor submits that as per the terms of the invoice, interest is continuing to accrue with each passing day and will exceed the above sum and Corporate Debtor is liable to pay further interest thereon at the rate of 24% p.a. which amounts to Rs.3,74,035.04/- and totally amounting to Rs.20,22,757.02/-. 4. The Counsel for the Operational Creditor submits that on 3rd June, 2016, Corporate Debtor remitted a sum of Rs.3,50,000/- to the Operational Creditor through RTGS and again on 10th August, 2016, the Corporate Debtor have remitted Rs.1,00,000/- through RTGS to the Operational Creditor. As per the Company's practice, the above amount was adjusted towards the outstanding invoices of Corporate Debtor on Fist in first out basis and the remaining credit of Rs.1,76,015.02/- was adjusted ....
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..... Mrunmaha Agro Foods Pvt. Ltd. for realization to DBS Bank and that too dishonoured and return with a remark "Fund insufficient". 7. As no payment was forthcoming and all its efforts of recovery went in vain, and upon realizing that the Corporate Debtor is unable/ incapable of paying the admitted operational debt to the Operational Creditor, the Operational Creditor served Demand Notice dated NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH C.P. 1570/IBC/2017 28.2.2017 upon the Corporate Debtor in Form-3 u/S. 8 of the Insolvency and Bankruptcy Code, 2016. The Operational Creditor also severed second demand Notice dated 29.05.2017 calling upon Corporate debtor to pay the outstanding amount of Rs.16,48,721.98/- along with accrued interest of Rs.3,74,035.04/- but Corporate Debtor has neither raised any dispute about unpaid Operational debt nor has given any notice relating to a dispute of the unpaid operational debt. 8. The Operational Creditor submits that the Corporate Debtor had not in any way, disputed the fact that there was a contractual relation between the Operational Creditor and the Corporate Debtor under the invoices, under the virtue of the Demand Promissory Note dated 2....
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....so submits that, it is clear by this that the Operational creditor has been habitual in concealing and not releasing documents which is also evident from the said Operational Creditor concealing the vital documents of a property which were given with bonafide intent as security to the Operational Creditor by the Corporate Debtor. Technically speaking the person holding the Bill of Lading of the Goods has the possession of the Goods as this is a well settled principle of Law, and that the Bills of Lading have been held by the Operational Creditor and hence it has exercised its right of lien on the goods as a Seller who feels he is Unpaid. 11. The Corporate Debtor submits that due to the act of Operational Creditor, the entire cash flow of the Corporate Debtor is being hampered and that on multiple occasions it was requested to the Operational Creditor to release the said Bills of lading as the goods are perishable in nature, there have been demurrage charges and other penalties levied on the same by the port authorities, and further due to extreme climatic conditions and acts of force majeure, the Corporate Debtor had to face financial heat. The Corporate Debtor also submits that....
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....mpany is unable to make payment or that the relief sought has bonafide or not. The only criterion to be looked into is as to whether debt and default are in existence as on the date of filing case. Under Section 9 of the Code, if corporate debtor brings it to the notice of operational creditor that debt is in dispute, then such claim cannot lie under section 9 of the Code. To see how this clause "existence of dispute" plays out, we have to read the judgment of Hon'ble Supreme Court delivered in Mobilox Innovations Private Limited v. Kirusa Software Private Limited (September 21st 2017) as to this; the para relevant is as below: "54. 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)(ii)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, al....