TaxTMI 
TaxTMI 
2020 (9) TMI 507
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....cial Creditor. FACTS OF THE CASE 2. The Operational Creditor is a company based in Singapore bearing Identification Number 199507398C and has filed this petition through its authorized signatories in India. The petitioner has annexed the Power of Attorney in this regard. The Corporate Debtor is a company bearing CIN - U74999MH2008PTC179703 and having nominal share capital of Rs. 5,00,000/- and paid up capital Rs. 1,00,000/-. 3. The Operational Creditor is a company which supplies products/materials (electronic magnetic components). It used to supply the said products/materials to the Corporate Debtor. The counsel for the Operational Creditor mentioned that the Corporate Debtor approached them in or around the month of April 2016 and had placed purchase orders sent through separate e-mails by the Director of the Corporate Debtor Mr. Jugal Dhawan. Accordingly, the products were duly delivered for which the necessary customs clearance of the products by paying the customs duty were paid by the Corporate Debtor. There were invoices raised by the Operational Creditor for the said purchase of products bearing the terms and conditions and were printed overleaf of the said invoices acco....
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....nd damages and on the assurance of help in selling the goods by the Corporate Debtor. But rather it was found that the Operational Creditor instead of helping the Corporate Debtor was selling the goods to the customers of the Corporate Debtor. It was also readily accepted by the Corporate Debtor to return the goods to the Operational Creditor subject to payment of custom duty and other expenses incurred by them. The Corporate Debtor also accepted to make the payment upon the sale of the dumped goods. ii. That the issue of quality of material remained unresolved. Several e-mails were sent by the Corporate Debtor to the Operational Creditor complaining about the quality of products delivered which are annexed with the copy of the reply. iii. That the purchase orders presented by the Operational Creditor are not signed by the Corporate Debtor. Specimen copy of the genuine purchase orders has been annexed at annexure 9 of the reply. 9. Therefore, the Corporate Debtor strongly contended that the Operational Creditor has not knocked the doors of the Tribunal with clean hands and therefore, this petition deserves to be dismissed. 10. To the reply filed by the Corporate Debtor, the O....
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.... custom duty on those goods was paid by them which clearly shows the intention of the Corporate Debtor that they were not wanting to return the goods and now are raising frivolous grounds for the dismissal of the petition. It was brought to light by an e-mail dated 11.11.2016 that the Corporate Debtor mentioned about the issues it is facing regarding the goods supplied by the Operational Creditor and has asked to take back the goods. It was stated that this would help the Corporate Debtor in clearing the payments of the Operational Creditor at the earliest. But later by an e-mail dated 24.10.2017, it was agreed by the Corporate Debtor to make the payment of the Operational Creditor on a regular basis. 15. There were several other e-mails as well which were addressed to the Operational Creditor by the Corporate Debtor dated 08.07.2016, 27.07.2016, 29.07.2016, 10.08.2016, 19.08.2016, 22.08.2016, 23.08.2016, 19.09.2016, 28.09.2016, 07.11.2016, 27.03.2017, 05.04.2017, 21.07.2017, 26.07.2017. After going through these e-mails, it has become crystal clear that the Corporate Debtor has several times admitted that they are bound to pay the due amount to the Operational Creditor and has a....
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....o 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 fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." Also, the paragraphs 15 and 18 of the judgment of Hon'ble NCLAT in the matter of Ahluwalia Contracts (India) Ltd. V. Raheja Developers Ltd. (NCLAT - Company Appeal (AT)(Insolvency) No. 703 of 2018, need to be relied upon which runs as follows: "15. In an application under Section 9, it is al....
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....ght and concocted contentions of the Corporate Debtor which cannot be relied upon. 20. Moreover, the ledger accounts of the Corporate Debtor for the Financial Year 2016-2017 maintained by the Operational Creditor bears the amount of debt of Rs. 1,75,56,450.65/- which was due and payable on the date of closing of the account i.e. 31.03.2018. 21. Therefore, this Bench having been satisfied with the Application filed by the Operational Creditor which is in compliance of provisions of section 8 & 9 of the Insolvency and Bankruptcy Code admits this Application declaring moratorium with the directions as mentioned below: (a) That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitiz....