TaxTMI 
TaxTMI 
2020 (5) TMI 426
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....ncy Resolution Process(CIRP) against Corporate Debtor the Learned NCLT admitted the application and Corporate Insolvency Resolution Process started. 2. Subsequently, I.A No. 112 of 2019 was filed under Rule 31 read with Rule 11 of the National Company Law Appellate Tribunal, 2016 seeking substitution of the director of the Corporate Debtor as appellant and impleadment of interim resolution professional as Respondent No. 2 in the present Appeal. In view of the Judgment of Hon'ble Supreme Court in "Innoventive Industries Ltd. v. ICICI Bank [2018] 1 SCC 407", and order dated 31st October, 2020 the I.A was allowed and the Appellant was directed to correct the Memo of Appeal. 3. Learned Counsel for the Appellant/Corporate Debtor during the course of argument and also in his written argument filed in this case, and also in his application have stated the brief facts as follows: "ii. The Corporate Debtor had placed an even work order dated 9-9-2017 of boom pump 36 meters with all accessories @ Rs. 4,00,000/ - per month was agreed that Applicant shall provide Boom Pump in a very good working condition with minimum guarantee of 280 flexi hours working in a month (27 worki....
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....iliation and mediation to resolve the existing dispute of deficiency of service, good and the amount vide an email dated 9-1-2018. That Operational Creditor is a member of CERA, whereas Corporate Debtor is not a member being construction company. viii. That Appellant received an email dated 28-2-2018 from the rental form CERA in support of their member (Respondent) to release an undisclosed, unjustified, illegal and arbitrary amount towards payments and in violation of the basic principles of natural justice. ix. The on 5-3-2019 Operational Creditor issued another bill even dated for the period of 1-11-2017 to 12-12-2017 of different amount which was never acknowledged or accepted by the Appellant. It is pertinent to mention that this fact was dishonestly concealed by the respondent in its section 9 Application, though the same was admitted in its rejoinder. x. Thereafter, the Respondent issued another (third) bill dated 29-9-2018, of the same period 1-11-2017 to 12-12-2017 for increased amount of Rs. 5,13,109.71/-, which was sent vide speed post on 4-10-2019. That the said third invoice dated 29-9-2018 was cancelled, by the appellant with a rema....
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....knowing full well that CERA is not an adjudicating body and the request by the Respondent no. 1/operational creditor was in the nature of mediation and conciliation in recovery of outstanding amount due from the appellant and the Ld. Adjudicating Authority has rightly observed that CERA vide letter dated 28-2-2018 decided against the appellant/corporate debtor which clearly indicates that the alleged dispute was settled and the appellant/corporate debtor has not challenged or taken any other steps against the decision of CERA, albeit a hypothetical or illusory dispute has been raised by the appellant/corporate debtor and same appears to be a moonshine defence. (E-mail dated 9-1-2018 sent by the Respondent No. 1 to CERA at page No. 136 of Volume I of Memorandum of Appeal and CERA e-mail sent to the Appellant at page no. 264 of Volume II of Memorandum of Appeal). 3. That the Respondent No. 1/operational creditor raised an invoice dated 1-12-2017 for an amount of Rs. 5,13,110/- for the services rendered during the period starting 01.11.2017 to 12.12.2017. However, the appellant/corporate debtor lured the respondent no. 1/operational creditor to believe that the appellant/corp....
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.... 6. That the respondent no. 1/operational creditor raised invoice nos. DEVI/27-18/056 dated 1-10-2017, DEVI/17- 18/085 dated 31-10-2017 and DEVI/18-19/143 dated 29-9-2018 for total amount of Rs. 11,93,375/- against the appellant/corporate debtor for the service rendered by it as per the log book duly signed and authenticated by the appellant/corporate debtor. (Log Book at page nos. 99 to 121 of Volume I of Memorandum of Appeal) The appellant made advance payment of Rs. 1,96,000/- to the respondent no./operational creditor. The Operational Creditor sent various e-mails to the Corporate Debtor about the payment due and payable by the appellant and requested for release of the outstanding amount. However, the appellant/corporate debtor failed to pay the unpaid operational debt. 7. That upon failure to pay the outstanding dues by the Corporate Debtor, the Operational Creditor sent a Demand Notice dated 1-11-2018 under section 8 of the Insolvency and Bankruptcy Code, 2016 to the appellant asking them to make the entire payment of Rs. 11,93,375/- (Rupees Eleven Lakhs Ninety-Three Thousand Three Hundred Seventy-Five only) along with interest as per the invoices within 10 day....
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....il dated 9-1-2018 at Page 136 of the Paper Book through its official Mr. Mithlesh Kumar for resolving the existing dispute and wherein, it is claimed that the CERA which is only an association arbitrarily vide its e-mail dated 28-2-2018 at Page 264 directed the Appellant to unilateral release/pay an undisclosed, unjustified and arbitrary amount. 10. We take note of these facts and also the Judgment of the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited v. KIRUSA Software Pvt. Ltd. reported in 2018 (1 SCC 353 Paragraph 33) Supreme Court has held as follows: "33. The scheme under sections 8 and 9 of the Code, appears to be that an Operational Creditor, as defned, may, on occurrence of a default (i.e. on non-payment of a debt, any part thereof has become due and payable and has not been repaid.), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8 (1)]. Within a period of 10 days of the....