TaxTMI 
TaxTMI 
2020 (5) TMI 175
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....ad (Gujarat) - 380015. The Applicant is engaged in the business of job-work of printing/designing on fabrics supplied by clients and handing over to them after completion of job-work, 3. The Corporate Debtor is a Private Limited Company, incorporated under the provisions of Companies Act, 1956 on 2-1-2004, duly registered with the Registrar of Companies, Jaipur bearing CIN: U18101RJ2004PLC018851, and its Registered Office is located at, F-21, Malviya Industrial Area, Malviya Nagar, Jaipur - 302017. The Authorised share capital of the Corporate Debtor is Rs. 1,00,00,000/- and issued, Subscribed and Paid-up share capital of the Corporate Debtor is Rs. 1,00,00,000/-. 4. It is the case of the Petitioner/Applicant that the Respondent/Corporate Debtor has failed to pay an amount of Rs. 3,67,297/- in discharge of its liability arising out of job-work carried out by the Applicant. It is submitted by the Applicant that the Corporate Debtor, through its representative, had approached the Applicant on 10-11-2015 and requested for carrying-out job-work of printing and designing on fabric/material supplied by the Corporate Debtor. The Respondent/Corporate Debtor had promised to make full ....
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....ed the present Application under section 9 of the Insolvency & Bankruptcy Code, 2016. 9. The total amount claimed by the Applicant as mentioned in Part IV is a sum of Rs. 3,67,297/- as an outstanding amount which is due and payable by the Corporate Debtor as described below: PART IV Sr. No. Particulars of Operational Debt 1. Total amount of debt, Details of Transactions Account of which debt fell due, and the date from which such debt fell due. Total Amount due and outstanding is Rs. 3,67,297/- 2. Amount claimed to be in default and the date on which the default occurred The total amount being claimed is Rs. 3,67,297/- Date of Default: 2-1-2016 to 7-1-2016 10. The Corporate Debtor has filed its reply stating therein that the Petition has been signed and filed in individual capacity as Proprietor of the firm but no documentary evidence in support of the signatory holding office of the Proprietor of the firm has been produced. In view of this legal lacuna the Petition filed is not maintainable as the signatory to the Petition must establish with documentary evidence his relationship with the Applicant. The Corporate De....
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....job-work on grey cloth provided by the Corporate Debtor were rejected, mainly for the reason of defective designing of printing and large variation in colour scheme, not matching with the approved samples for printing design and colour, thereby making the grey cloth also unusable for export orders and also on account of unreasonable delay in delivery of finished goods. Therefore, the respective Debit Notes inclusive of the cost of the fabric (being converted as scrap) were raised and handed over to the representatives of the Applicant for adjustments in their account books. 13. The Corporate Debtor has stated that the Applicant also assured that the debit balance amounting to Rs. 3,48,541/- would be adjusted against future supplies but, due to poor quality of work, the Corporate Debtor could not continue any business relationship with the Applicant, However, the Corporate Debtor has not placed any record evidencing such assurance. The Corporate Debtor has also alleged that the Applicant has not made any credit entry of any debit note(s) in the Account Statement annexed with the petition. Therefore, the credibility of the Account Statement is doubtful, being not based on genuine ....
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....email on 20.01.2016, which is reproduced below: "Dear All @ V together, rayon twill rejected fabrics As informed to you earlier, please again note we received REJECTED fabrics from your side (find the attached).. We have sent back these rejected fabrics.. & complete cost will be bear by you.. Our garment shipment been cancelled due to this.. Thanks, Rajendra" 19. In respect of the aforesaid email, the Applicant has submitted that the said email refers to "Dear All @ V together" and the said email in addition to others is addressed to ''[email protected]" which is another firm whose proprietor is also "Vijay Kumar Todi (HUF)" and the said firm has no relation with the present case. On directions of the Adjudicating Authority, the Applicant provided relevant documentation to ascertain/confirm that 'V. Together' is a different/distinct entity vis-a-vis "V. One". 20. It is also submitted by the Applicant in additional affidavit that in another email dated 25-5-2019 that has been filed by the Corporate Debtor, which starts with "[email protected]", in trailing email chain thereunder, the Corporate ....
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....tant point to be considered for analysis is whether dispute as raised by the Corporate Debtor is genuine or can be categorised as moonshine. (a) Section 5(6) of the Insolvency & Bankruptcy Code, 2016 defines the term 'dispute' as under: "dispute" includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) the quality of goods or services; or (c) the breach of a representation or warranty; (b) On perusal of the records it is seen that the email conversation raising dispute is with respect to transactions between the Corporate Debtor and V. Together. The registration certificate filed by the Applicant vide dairy no. 2559/2019 reveals that V. Together is a HUF, different from M/s. V. One. The Corporate Debtor has nowhere stated, or objected to, or disputed, the invoices or its contents. The copy of debit notes stated to have been issued by the Corporate Debtor, without any clear admittance of the same by the Supplier or any contextual claim or communication between the parties, does not incontrovertibly establish that the said debit notes were raised against defective goods sup....
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....redit/payable entries are stated at gross values. This indicates that inherent contradiction or deficiency, if any, of accounts lies with the Corporate Debtor and it creates confusion/suspicion about its own arguments/assertions, including veracity of the alleged debit notes. (v) Form 26AS filed by the Operational Creditor is uncontroverted and the conclusion therefrom is that the amount of TDS of Rs. 3,711/- on the invoiced amount of Rs. 3.71,008/-, is in line with the submissions of the Operational Creditor. The said TDS entry is final and has been booked on 23.05.2016, as per the said Form 26AS. If there was any dispute arising in January 2016 itself, causing debit notes to be made, then final booking of the TDS amount would not have been so done. Instead, revision/rectification of TDS return or TDS adjustment would have been sought. There is no mention of any such action for correction of TDS/return or any claim having thus arisen from the Corporate Debtor and consequent follow-up or follow-through. (vi) The submission of the Corporate Debtor about limitation also does not have firm footing. It is seen that Corporate Debtor has maintained a running account wit....
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..../144 SCL 37, held as follows: "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 "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. 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. 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 fac....