TaxTMI 
TaxTMI 
2020 (6) TMI 662
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....Pvt. Ltd.' (Respondent No. 2/'Corporate Debtor'). They are aggrieved of the impugned order dated 19th December, 2019 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi (Court No. IV) in Company Petition No. IB-1177/ND/2019 whereby and whereunder the Adjudicating Authority has admitted the Company Petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") filed by 'M/s. Health Care At Home India Pvt. Ltd.' (Respondent No. 1/ 'Operational creditor') for initiation of 'Corporate insolvency Resolution Process' of the 'Corporate Debtor'. The impugned order has been assailed merely on the ground of pre-existing dispute ....
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....cheques were dishonoured as claimed by the 'Operational Creditor' which led to filing of complaint cases under section 138 of the Negotiable Instruments Act, 1881 stated to be pending for determination before Ld. Metropolitan Magistrate. Since the payment was not forthcoming, 'Operational Creditor' claimed to have served a Demand Notice dated 25th February, 2019 under section 8 of the 'I&B Code' upon the 'Corporate Debtor'. The Notice was subsequently withdrawn as according to the 'Operational Creditor' some inadvertent errors crept therein. This was followed by a fresh Demand Notice sent on 16th April, 2019 claiming a payment of Rs. 2,02,07,685.96/- together with interest at the rate 18% per annum wi....
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....Debtor' found that the offer of the 'Corporate Debtor' to pay a mere sum of Rs. 27,08,891/- only was designed to evade its liability in respect of the total claim put up by the 'Operational Creditor', thus culminating in passing of the impugned order. 3. Learned counsel for Appellants submits that none of the invoices bears any acknowledgment by the 'Corporate Debtor'. It is contended that 15 disputed invoices were never communicated to the 'Corporate Debtor' before issuance of Demand Notice and there was no proof of such products having been delivered. It is submitted that demand for the alleged operational debt of Rs. 2,02,07,685.96/- was raised only in the second Demand Notice dated 16th April, 2019. ....
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....nal Creditor' in discharge of the payable debt prior to issuance of Demand Notice. As regards withdrawal of 1st Demand Notice, it is submitted that due to certain inadvertent errors, a mistake had crept in the Demand Notice and the 1st Demand Notice was accordingly withdrawn to rectify the mistake and 2nd Demand Notice was issued on 16-4-2019. Lastly, it is pointed out that the 'Corporate Debtor' has admitted liability in respect of operational debt to the tune of Rs. 27,08,891/- and since the claim includes right to payment even if it is disputed, the debt and default established against the 'Corporate Debtor' did warrant initiation of 'Corporate Insolvency Resolution Process'. 5. Heard learned counsel for the ....
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.... pending consideration before the Hon'ble Apex Court. Be that as it may, the fact remains that the 'Corporate Debtor' was responsible for bouncing of cheques and this fact is not disputed by the 'Corporate Debtor' who has advanced the unsubstantiated plea of stopping payment against those cheques on the basis of an understanding that those cheques would not be presented by the 'Operational Creditor' for encashment without prior approval of the 'Corporate Debtor'. There is not an iota of evidence on record even to hint that as many as seventeen cheques were issued by the 'Corporate Debtor' in favour of the 'Operational Creditor' as security and not in discharge of legally enforceable obliga....
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....unt from the Bank account of the 'Corporate Debtor' or by sending an attested copy of record demonstrating encashment of cheque by the 'Operational Creditor'. Section 9 of the 'I&B Code' entitles the 'Operational Creditor' to seek initiation of 'Corporate Insolvency Resolution Process' inter alia on the ground that the 'Operational Creditor' did not receive payment from the 'Corporate Debtor'. A combined reading of Sections 8 and 9 of the 'I&B Code' leaves no room for doubt that the payment of unpaid operational debt has to be unqualified and evidenced by electronic transfer from Bank account of the 'Corporate Debtor' to the Bank account of the 'Operational Creditor....