TaxTMI 
TaxTMI 
2020 (10) TMI 66
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.... Corporate Debtor is 3/8, IInd Floor, Sab House, Asaf Ali Road, New Delhi-110002. 3. The case of applicant/Operational Creditor in short is that the Corporate Debtor had been a regular buyer of Aluminum Ingots and Wire Rods from the Operational Creditor. The Operational Creditor would fulfill orders placed by the Corporate Debtor and raise invoices for the same. The Corporate Debtor would in turn make lump sum payments periodically, within 120 days from the date of the oldest unpaid invoice. The sales and receipts of payments reflected in the ledger maintained by the Operational Creditor. The Principal Operational Debt herein pertains to purchases of Aluminum (Ignots and wire rods) from the Operational Creditor for the period 25.12.2017 to 22.01.2018. These sales are documented in the invoices bearing the following numbers:- WWMPL/DG/0122-0163 and WWMPL/DG/0167-0169. 4. These invoices amounted to a total unpaid amount of Rs. 13,07,50,666/- which forms the Principal Operational Debt on account of sale of goods. The operational Creditor performed its obligations in accordance with the agreed terms and continued to supply the material ordered. Whereas the Corporate Debtor failed....
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....10.2018 sent by the applicant, the Corporate Debtor responded by reply, dated 05.11.2018 to the demand notice. At the outset, it is stated that the Corporate Debtor has failed to bring to the notice of the Operational Creditor any existing dispute or any payment of the unpaid operational debt as is mandated under clause 2 of the Section 8 of the IBC. In the said reply the Corporate Debtor has admitted the maintenance of a mutual running account in para 5. The Corporate Debtor has referred to a non-existent settlement and reconciliation of accounts allegedly on 31.03.2018. The Corporate Debtor has not attached any proof of such reconciliation. In absence of any proof of the same, the averments are nothing but a mere denial of liability. A perusal of the ledger account of the applicant for the FY 2017-2018 shows that the last sale to the Corporate Debtor took place on 22.01.2018 and the last payment was received on 23.02.2018. Thereafter a balance of Rs. 13,07,50,666/- is due and payable on account of sales. The Principal Operational Debt is due and payable from the date on which the invoices were raised and material delivered i.e. the individual dates of the invoices in the period f....
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....he Principal Amount of Rs. 13,07,50,666/- is due and payable since 28.02.2018. Further, the entries in the ledger account during the period of 01.04.2017 to 31.03.2018 as shown in the petition is not correct. Further, the Corporate Debtor vide letter dated 01.04.2018 sought confirmation from the Operational Creditor that against the purchases made by the Corporate Debtor from the Operational Creditor between 01.04.2017 and 22.01.2018, no amount was payable by the Corporate Debtor to the Operational Creditor as on 01.04.2018. The copy of the confirmation of accounts dated 01.04.2018 with the reply annexed as R-3 at page 34 to 62 of the reply. During the Financial Year 2017-2018, Corporate Debtor confirms the receipt of payments on 03.11.2017 for Rs. 1,95,85,789/- against LC on 07.11.2017 for Rs. 97,94,940/- against LC and on 10.11.2017 for Rs. 48,92,871/- against LC. Further, some of the subsequent entries of payment between 19.02.2018 and 31.03.2018 as reflected in the ledger of the Corporate Debtor in favour of Prominent Metals Pvt. Ltd. as per instructions of the Operational Creditor have been deliberately omitted from the ledger. Further, the Corporate Debtor states that the Ope....
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....s have been filed by the Operational Creditor, therefore, Corporate Debtor claimed that statement of accounts filed by the Operational Creditor from the period of 01.04.2017 to 31.03.2018 are factually incorrect and these facts have been raised prior to the issuance of the demand notice and all other correspondence have been made prior to the issuance of demand notice. 9. The applicant has filed rejoinder to the reply filed by the Corporate Debtor and the facts of the rejoinder in short is that letters or confirmation of accounts filed by the Corporate Debtor is false, forged, fabricated and manufactures and the signatures of the directors and associates of the applicant and its sister concern are also forged, fabricated and manufactured. Further, Corporate Debtor fails to establish the persons, who have signed the alleged letters, vide which the alleged transfer entries are purported to have been made had any authority whatsoever to sign the alleged letters or to authorize the alleged transfers and no related documents have been placed. Further, articles and memorandum vest all the powers in the directors only and whenever the seal stamp of the company is to be used anywhere, i....
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....uted rather respondent has admitted the supply of goods. He further submitted that respondent claimed that debt has already been discharged and he further claimed that by sending the reply of the Legal Notice as well as demand notice he raised the dispute, therefore, two contradictory submissions have been made by the respondent. He further submitted that no document has been produced by the respondent as required under Section 8 of the IB Code to show that debt has been discharged. He further placed reliance upon the various letters alleged to have been exchanged between the parties to show that these entries have been agreed to by both the parties which are annexed as R-4 to 15 but these documents are forged and fabricated. He further submitted that the signatures of the above mentioned letters are alleged to be those of clerical employee of the Operational Creditor, who had no authority whatsoever to allow setting off such huge amounts. He further submitted that all the invoices of the Operational Creditor have been signed by the director but letters allegedly signed by one Sandeep on behalf of Worldwide Metals Private Limited and by one Yogender on behalf of M/s. Prominent Meta....
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....1.03.2018 duly confirmed by the Operational Creditor. He further submitted that Operational Creditor taken a plea that the persons, who have signed the letters relied upon by the Corporate Debtor have not been authorized and had no authority to sign the letters and these letters have not been signed by one of the directors of the Operational Creditor and its Sister concern, therefore, these documents, which are annexed at page 97 to 134 of the Reply are forged and fabricated and manufactured by the Corporate Debtor therefore, Operational Creditor by making such submission themself raised the dispute. He further submitted that on the basis of ledger account, which the Corporate Debtor referred in the reply, there is no debt due. He further submitted that there exists a pre-existing disputes and in this regard he placed reliance upon the decision of Hon'ble Supreme Court in the matter of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. He further submitted that applicant has not raised these facts in the application that the documents were forged and fabricated rather he concealed these facts. 15. He also placed reliance upon the decision of Hon'ble NCLAT in the....
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.... page 42 to 47 then we find that these invoices are referred in the confirmation of accounts filed by the respondent/Corporate Debtor. 19. At this juncture, we would like to refer the submissions made by the Operational Creditor. In course of arguments, Operational Creditor submitted that all these documents are signed by clerical employee of the Operational Creditor, who had no authority whatsoever to allow setting of such huge amounts and these documents are forged, and fabricated and manufactured, so, no reliance can be placed upon these documents. 20. In the light of submissions, when we have gone through the documents then we find that the Demand Notice was issued on 27/10/2018 and reply to the Demand Notice was sent on 05/11/2018 within the period prescribed U/S 8(2) of IBC but these documents are prior to the issuance of demand notice. We further find, in the reply to the Demand Notice, same points have been referred by the Corporate Debtor, which the Corporate Debtor had raised in the reply to the legal notice dated 11.08.2018 and this fact has also been admitted by the Operational Creditor. Since the Operational Creditor submitted that there is a difference between p....
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....dispute is concerned, it is true that Corporate debtor has not raised the quality of goods but they raised the existence of amount of debt, which in our opinion, come under the definition of Dispute and this has been raised by the Corporate Debtor prior to the issuance of Demand notice and also in reply to the Demand Notice as required U/S 8(2)(a) of IBC. Now the next contention of the Operational Creditor is that Corporate debtor also claim that debt has been satisfied but fails to produce the documents as required U/S 8(2)(b) of IBC is concerned when we shall consider the first submission of Operational Creditor along with this submission then we are of the view that second submission of Corporate debtor is related with first submission in support of this contention the Corporate debtor enclosed the documents with the reply which we have referred in the aforementioned Para and which are duly signed by the Operational Creditor regarding the confirmation of accounts and various correspondence made between the parties and one M/s. Prominent Metals Pvt. Ltd. By filing rejoinder Operational Creditor claimed that these documents are forged and fabricated. When we shall consider the sub....
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.... dated 21.09.2017 in which Hon'ble Supreme Court held that "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 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 examined the merits of the dispute except to the extent indicated above. So long as a dispute trul....