TaxTMI 
TaxTMI 
TaxTMI 
2020 (8) TMI 790
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....mitted the Application under Section 9 of I&B Code. 2. Brief facts of this case are that Poggenamp Nagarseth Powertronics Pvt. Ltd. Respondent No. 2 (herein after referred as Corporate Debtor) and POSCO-India Pune Processing Centre Pvt Ltd. Respondent No. 1 (herein after referred as Operational Creditor) have regular business transactions between the year 2007 to 2014. The Operational Creditor had supplied Steel (Goods) to the Corporate Debtor and had raised invoices against the same. The Corporate Debtor failed to pay the dues towards the invoices. After, continuous follow ups Corporate Debtor issued a letter dated 03.06.2015 to the Operational Creditor, acknowledging debt due as on 1st June, 2015 amounting to Rs. 16,04,87,392/- and gave an assurance that the Corporate Debtor shall pay the said amount with simple interest at the rate of 10.5% per annum in 18 (eighteen) equal monthly instalments i.e. from June, 2015 to November, 2016. The Corporate Debtor made payments from June, 2015 to November, 2015 total sum of Rs. 3,36,00,000/-. Which was adjusted against the principal amount. Thereafter, The Corporate Debtor made certain ad-hoc payments Rs. 2,75,00,000/- which were adjusted ....
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.... the Corporate Debtor had raised plausible dispute much prior to the notice dated 11.05.2018 under Section 8 I&B Code, which clearly satisfied the test laid down by the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. (2018) 1 SCC 353. 7. Learned Counsel for the Appellant submits that this Appellate Tribunal in the case of M/s Lloyd Insulations India Ltd. Vs. M/s Sintex Prefab and Infra Ltd. decided on 14.01.2020 held that it is not desirable to decide whether the dispute raised by the Corporate Debtor is genuine or not which can be decided by the Court of Competent Jurisdiction and not by the Adjudicating Authority or this Appellate Tribunal. 8. It is further submitted on behalf of the Learned Counsel for the Appellant that when there is a negotiation on going between the parties relating to the quantum of payment, it can be accepted that there was a existence of dispute about the payment of debt as held by this Appellate Tribunal in the case of Nayan Shah Vs. Viral Rajarashi Mehta & Anr. decide on 29.06.2018. 9. Thus, there is Pre-Existing Plausible Dispute in this case. Therefore, the impugned order deserves to be set aside. 10....
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....orate Debtor sent emails dated 29.01.2016, 26.08.2016, 31.08.2016, 16.09.2016 and 21.09.2016 and asked the Operational Creditor for providing copy of ledger for reconciliation of their Account books. Material emails and letters between the parties are considered. 17. On 11.09.2017, the Respondent No. 1 (Operational Creditor) sent email to Corporate Debtor, relevant portion of the letter reads as under:- "This is with reference to the captioned subject and all earlier correspondences in respect thereof. We have been continuously following-up with you through emails, letters and telephonic communications for clearance of the said Outstanding Dues. There is no payment made by you towards Outstanding Principal except an amount of Rs. 33,600,000/- (Rupees Three Crore Thirty-Six Lakh Only) as on 31st August, 2017. Also, no payment made by you towards Outstanding Interest except an amount of Rs. 2,75,00,000/- (Rupees Two Crore Seventy-Five Lakh Only) as on 31st August, 2017." 18. On 12.09.2017 the Corporate Debtor has replied the email, which reads as under:- "Dear Mr. Moon, First of all your outstanding as on August 31, 2017 is not matching with our books of account. Further....
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.... to have an urgent meeting with us to sort this out which we have been repeatedly requesting to you." 21. With the aforesaid exchange of correspondence, it is apparent that the Respondent No. 1 (Operational Creditor) has informed the Corporate Debtor that they have adjusted Rs. 3,36,00,000/- towards outstanding principal amount and Rs. 2,75,00,000/- towards outstanding interest. In response, the Corporate Debtor has not raised objection that the Operational Creditor has contrary to the terms of the letter dated 03.06.2015 adjusted the amount towards the interest. The Corporate Debtor in reply dated 09.11.2017 has referred about another claim and dues. However, particulars are not disclosed in the letter and reply to the Application before Adjudicating Authority. 22. Admittedly, the Corporate Debtor has not replied statutory notice dated 11.05.2018. Thus, from the correspondence it cannot be inferred that the Corporate Debtor has raised any plausible dispute. 23. Now, we have considered whether the so called dispute raised in reply to the Application under Section 9 of I&B Code, is a Plausible dispute. As per the acknowledgement and assurance letter dated 03.06.2015, the Corpora....