TaxTMI 
TaxTMI 
2018 (12) TMI 1686
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....Applicant at its office at Ashok Vihar, Delhi for procuring the batteries and after satisfying itself with regard to quality and rates of the batteries agreed to purchase the batteries on the agreed rates with an assurance that the payment of each invoice shall be paid within 30 days from the date of receipt of invoice, otherwise interest @ 15% p.a. shall be payable thereafter. ii. Accordingly, the first purchase order dated 04.04.2017 was issued by the Respondent from its office situated at 21/14, Block, Phase-IT, Nariana Industrial Area, New Delhi to the Applicant. It is evident to point out here that the Applicant supplied the material in terms of the purchase order to the absolute satisfaction of the Respondent. Consequently, the Applicant handed over the invoice of the delivered material at the agreed price, for payment. Although as per the agreed terms the payment of each invoice was to be made within 30 days from the date of the receipt of the material but the payment was not released within the agreed time. iii. The Respondent issued further purchase orders at different intervals of time in favour of Applicant for the supply of the batteries. It is submitt....
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.... 04.01.2018 was an inadvertent mistake as actual due amount as per the ledger account maintained by the Applicant is Rs. 88,48,294/- only. The aforesaid legal notice dated 04.01.2018 was sent through speed post/courier on 10.01.2018 and the notice of default was served to the respondent on 11.01.2018/12.01.2018. vii. It is submitted that although the notice of default was served to the respondent on 11/12.01.2018 no action whatsoever has been taken by the Respondent within 10 days as prescribed under the Act. It is submitted that the Respondent after the expiry of the statutory 10 days sent a reply dated 01.02.2018 stating that a sum of Rs. 60,00,000/- has been retained by the Respondent as the warranty period of the batteries has not expired and Rs. 30,00,000/- was kept on account of excise amount. 2. The Respondent filed its reply to the application and has contended as follows: i. The Applicant has only referred the email dated 03.11.2017, wherein the outstanding amount was finalized at Rs. 2,73,94,780/- but the Applicant has intentionally concealed the email dated 23.11.2017, whereby it was specifically clarified to the Applicant by the Respondent that the ....
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.... facts. ii. The desired material was lastly delivered to the Respondent through the invoice dated 30.09.2017 and till 30.09.2017 no objection whatsoever had been raised by the Respondent with regard to quality, quantity and the payment arising from the invoices delivered to the Respondent. Therefore, the Respondent vide e-mail dated 03.11.2017 confirmed the balance amount of Rs. 2,73,94,780/- against the 17 invoices mentioned in the said e-mail. The Respondent also provided the schedule of the payment of the confirmed due amount to the Applicant and till the aforesaid date there was no assertion of existence of any dispute with regard to any part of the payment confirmed by the Respondent, hence the reference to the contents of e-mail dated 23.11.2017 is of no consequence inasmuch as the same are nothing but a self-declaratory claim of the Respondent which has nothing to do with the terms and conditions of the supply of the material. iii. Further there was no agreement whatsoever with regard to deduction of any amount from the rates already accepted by the Respondent, therefore since the beginning of the supply till the last payment no deduction whatsoever has bee....
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....back the defective batteries as listed out in the annexure by the Respondent. The list is only a compilation of batteries and other details and the respondent has not produced any correspondence made to the Applicant on quality issues. Moreover, the contention of the Respondent that he will hold up the payment till the warranty period is also not as per the terms of business transactions in the normal course. There is no document submitted by the Applicant showing that the retention of money for warranty/excise duty was followed in the normal course of business. Thus, as discussed above the issues raised by the respondent cannot be considered as sufficient material to qualify as a 'dispute' as per the procedures outlined in the code. 6. In view of the above this the Tribunal is inclined to admit this application and accordingly initiate the process of CIRP of the Respondent. Since the Applicant has not named the insolvency resolution professional, this Tribunal based on the list furnished by Insolvency and Bankruptcy Board of India appoints Mr. Avineesh Matta, with registration number IBBI/IPA-001/IP-P00610/2017-18/11070 (email - [email protected], Mobile No. 9811052264) as....