TaxTMI 
TaxTMI 
2018 (10) TMI 1792
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....cation which are unrelated or does not disclose any dispute. 3. Reliance has also been placed on letter dated 13th November, 2013 written by the Respondent- (Corporate Debtor) on which the Adjudicating Authority relied upon to hold that there is an existence of dispute. 4. On the other hand, according to learned counsel for the Respondent- (Corporate Debtor), there is an existence of dispute which is apparent from letter dated 13th November, 2013. This apart, the Respondent- (Corporate Debtor) has also questioned the quality of material supplied by the Appellant- (Operational Creditor). 5. The brief fact of the case is that a Contract for- Gen set on Turnkey Contract on Rental- including supply, installation, maintenance, removal for Commonwealth Games 2010, Delhi was reached between the Corporate Debtor- D-Art Furniture Systems Pvt Ltd. with Operational Company Appeal (AT) (Insolvency) No. 327 of 2018 Creditor- M/s. Sudhir Sales & Services Ltd.. The price, as stated in the bill of quantity is Rs. 1,62,49,360.00 (One Crore Sixty-Two Lakh Forty- Nine Thousand Three Hundred Sixty Only) inclusive of all taxes but exclusive of service tax as applicable (present rate is 10.3%). Detai....
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....nt- (Corporate Debtor) as per law. 9. Further case of the Appellant- (Operational Creditor) is that while nothing was heard from the Respondent- (Corporate Debtor), the Appellant- (Operational Creditor) was constrained to send statutory Company Appeal (AT) (Insolvency) No. 327 of 2018 notice dated 13th April, 2016 under Sections 433 (e) and 434 (1) (a) of the Companies Act, 1956. Thereafter, petition under Sections 433 and 434 of the Companies Act, 1956 for winding-up of the Respondent Company was filed before the Honble High Court of Delhi. 10. In the meantime, the I&B Code came into force and the matter got transferred from the Honble High Court to the National Company Law Tribunal vide its order dated 15th February, 2017. Subsequently, on 27th November, 2017 the petition was withdrawn with liberty to file a fresh application under Section 9 of the I&B Code. Thereafter, a demand notice dated 20th December 2017 under Section 8 of the I&B Code was issued. Nevertheless, since the outstanding amount was not paid the present application under Section 9 of the I&B Code was preferred on 24th January 2018 for initiation of Corporate Insolvency Resolution Process against the Respondent-....
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....s Pvt. Ltd. Vs. Kirusa Software (P) Limited 2017 SCC OnLine SC 1154, wherein the Honble Supreme Court held: 40. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which Company Appeal (AT) (Insolvency) No. 327 of 2018 requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 18. In the present case, the Adjudicating Authority has decided the issue of pre-existence dispute on the basis of letter dated 13th November, 2013 and the reply given by the Corporate Debtor under Section 8(2) given by the Respondent- (Corporate Debtor) on 9th September, 2017. It is for the said reason we have ....
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....demand notice under Section 8(1) and is as follows: Company Appeal (AT) (Insolvency) No. 327 of 2018 "Dated 09.09.2017 Manish Kumar & Associates, 18, Todarmal Road, First Floor, Bengali Market, New Delhi - 110001. Sub: Reply to the Demand Notice dated 02.09.2017 wrongly dated as 02.09.2016. Dear sir, 4. It is stated that the alleged amount claimed by your client are hopelessly barred by limitation as the alleged amount pertains to the year 2010. 5. It is stated that the DG sets which were delivered to our Client on rental basis, were defective and not up to the mark, which was duly conveyed to your Client. Our Client had contacted your Client several times and had informed about the defective quality of the DG sets and also the nature of loss caused on that amount. 6. Without prejudice to the aforesaid, the amount claimed by your Client is not due and payable by our Client. In fact, it is a matter of record that our Client has, time and again disputed payment of the said amount. 7. It is an admitted position that initially, the contract was for Rs. 1,62,49,360/- (Rupees One Crore Sixty Two Lakh Forty Nine Thousand Three Hundred and Sixty only) and later on the contract valu....