TaxTMI 
TaxTMI 
2020 (2) TMI 444
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....here is existence of dispute prior to issuance of Demand Notice by the 2nd Respondent. 3. Learned Counsel for the Respondent submitted that the 2nd Respondent supplied and delivered the materials in pursuance to the Purchase Orders made by the 3rd Respondent and the 3rd Respondent had defaulted in making payments. 4. Both the Counsel put forth their arguments extensively. 5. Heard learned Counsel appearing for the respective parties. Perused the pleadings and documents. The Adjudicating Authority admitted the application, vide order dated 28th May, 2019 with the following observations: ... 7. For there being material aplenty reflecting the contract is in between the Operational Creditor and the Corporate Debtor and the supplies were made by the Operational Creditor to the Corporate Debtor basing on the purchase orders raised by the corporate debtor and the Corporate Debtor in turn made part payments to the Operational Creditor without raising any defence as stated now, we hereby hold that it is a fit case for admission, therefore this Company Petition is hereby admitted by appointing Dr. L. Natarajan as Interim Resolution professional, looking at the cons....
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....nal Creditor and the Corporate Debtor on 08.09.2018. From the perusal of the Form-V filed by the Operational Creditor, i.e., 2nd Respondent herein a claim of an amount of Rs. 41,94,575/- along with interest of Rs. 3,97,742/- was made. The transactions as per the Form is that Operational Creditor had supplied 64 nos. of Roof Top Units (in short "RTU") vide Purchase Order dated 06.09.2018 and additional materials were supplied vide another Purchase Order dated 08.09.2018. Pursuance to the Purchase Orders, invoices were raised to the tune of Rs. 6,06,00,347/-. Further the Operational Creditor and the Corporate Debtor had entered into an MOU dated 08.09.2018. In terms of this MOU, Operation Creditor supplied 57 nos. RTU and in terms of the said MOU, Corporate Debtor should have completed the payment of Rs. 4,84,80,278/- before dispatch of 32 units of RTU. However, the Operational Creditor received only Rs. 3,68,34,560/-. Hence the parties have entered this MOU dated 08.09.2018 to confirm the clear understanding between them. Further, it is seen that the Corporate Debtor issued post-dated cheque dated 20.09.2018 for Rs. 2,37,65,787/-. 7. The contention of the Operational Creditor ....
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....information that Medium-filters of 440 nos. and some fan meshes (11 Nos.) are not supplied from your side as per the requirement for all the RTU's till date. Also the extra materials (i.e.) extra aluminium profiles, Fittings, Scraps, Spider for lifting RTU's and extra Control Panel which belongs to us have not been returned to us so far. We have not received the 100% materials so far and they are not paying us due to the delay in the delivery of these materials. They are also insisting us that they are going to charge us for the delay in the supplies. If they charge anything for us the same will be implemented on your company and it is because you have not supplied 100% of the materials as per our agreed Purchase order. And if you have supplied 100% materials on time we might have made your 100% payment. Due to the insufficient materials the commissioning is also delaying and because of that our customer is unable to get the money from their client. Our customer is ready to pay 10% for us if you have supplied on time (Meshes and Filters) but you haven't done it so far. So, we are unable to pay to you on time as per the MOU also. Moreover, according to our PO (AMCA/KIA/18 d....
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.... by Operational Creditor: Provision under Section 8 of the IBC which reads as follows; 8. Insolvency resolution by operational creditor (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The Corporate Debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment 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. Explanation.-For the purposes of t....
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....6 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute [Section 8(2)(a)]. What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. ....." At paragraph 51 it is held: "51. ..... Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence." .... [Emphasis supplied] 13. From the aforesaid correspondences it is clear that there is pre-existence dispute with regard to quality and service prior to issuance of Demand Notice. In view of the decision of the Hon'ble Supreme Court and this....