TaxTMI 
TaxTMI 
2020 (1) TMI 677
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....on to Adjudicating Authority) Rules, 2016 to trigger Insolvency Resolution Process against the Respondent M/s Shree Rama Newsprint Limited. The Adjudicating Authority dismissed the application filed by the Appellant. The said order is impugned in this appeal by the Appellant. The Adjudicating Authority rejected the application on the ground of existence of dispute prior to issuance of Demand Notice dated 01.02.2018. 3. The Appellant had taken various grounds in this appeal to show that the dispute which was raised by the Respondent is not a bonafide dispute and it is a mere sham dispute raised by the Respondent-Corporate Debtor to escape liability of the operational debt. The Respondent has denied, the stand taken by the Appellant and submitted that the existence of dispute prior to the issuance of Demand Notice is a bonafide dispute and raised much prior to the issuance of Demand Notice. 4. Heard learned Counsel appearing on behalf of the respective parties, perused the pleadings and the documents filed in their support. Before proceeding to decide the issue regarding whether there is existence of dispute prior to the issuance of Demand Notice or not: 5. The Facts of the ....
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....ever your e-mail is not acceptable hence we are not left with no option but to proceed legally to recover the dues." [ Emphasis supplied] 9. It is an admitted fact that the Appellant failed to supply coal as per the P.O. dated 9.8.2016. It is not in dispute and in view of the requirement, the Respondent had placed Purchase Order on one Trona Minerals India Pvt. Ltd. vide Purchase Order no. 4400000028 dated 19.09.2016 for supply of 3000 MT of Coal. The stand of the Respondent is that the Appellant had failed to supply coal as ordered on 09.08.2016 and in view of necessity, they had placed and purchased coal from Trona Minerals India Pvt. Ltd. and raised a Debit Note on the Appellant in accordance with clause-8 of the Terms and Conditions as specifically mentioned along with the Purchase Order dated 9.8.2016, which is part of the said Purchase Order. 10. The Appellant filed the application before the Adjudicating Authority claiming an amount of Rs. 49,53,335/- from the Respondent. In paragraph-4 of the application, the Appellant clearly stated that the Respondent- Corporate Debtor, on 09.08.2016, placed an order on Appellant for purchase of 3000 MT of non-coking coal o....
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....rstly, the judgment of this Tribunal which was relied upon by the learned Counsel for the Appellant from the facts it is evident that the Corporate Debtor therein had raised certain disputes in reply to the Demand Notice. Therefore, this Tribunal had taken a view that the dispute which was taken/raised by the Corporate Debtor therein is not prior to the issuance of Demand Notice. Therefore, the said judgment of this Tribunal is not applicable to the facts of the present case. 14. Judgment of the Hon'ble Supreme Court in the matter of "Mobilox Innovations Pvt. Limited. Vs. Kirusa Software Private Limited." reported in (2018) 1 SCC 353 is a landmark judgment particularly with respect to Sections 8 & 9 of the IBC. Pargraph-51 of the judgment is extracted hereunder: 51. 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 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 "exi....
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....n proceedings filed before the receipt of such notice or invoice in relation of such dispute; (b) the payment of unpaid operational debt - (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor." ... "Application for initiation of corporate insolvency resolution process by operational creditor. Sec. 9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8 if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process". .... Sub-Section 5 of Section 9 of IBC reads as under: the Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section 2, by an ....