TaxTMI 
TaxTMI 
2020 (10) TMI 324
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....nsolvency & Bankruptcy Code 2016 (in short, 'IBC, 2016') r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 2. The MA/135/2020 in IBA/834/2019 has been filed by the Operational Creditor under Rule 11 of the NCLT Rules, 2016. The prayer made is to amend the cause title in the application filed under IBA/834/2019 replace the name of the Petitioner with the name of the proprietor of the petitioner. Since the same is only for the amendment of the cause title, the MA/135/2020 filed in IBA/834/2019 stands allowed. 3. A perusal of Part I of the Application shows that the Petitioner is a Sole proprietor. In ....
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....tative for the Operational Creditor submitted that the principal amount outstanding after the receipt of the said amount is Rs. 14,58,176/- and interest outstanding is Rs. 1,46,776.85/- which the Corporate Debtor has failed to pay. 7. The Operational Creditor issued Demand Notice under Section 8 of IBC to the Corporate Debtor on 29.03.2019 and the same was served to the Corporate Debtor on 30.03.2019, however the Corporate Debtor has preferred not to reply to the same. 8. The Learned Counsel for the Corporate Debtor submitted that the Operational Creditor supplied NKV Gypsum to the Corporate Debtor from 2017 onwards and whenever the same is delivered to the Corporate Debtor, the Operational Creditor raised several invoices and more partic....
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....pleted the work viz. (1) ABC Snag & pending Works, (2) Pending Flats - A 403, B 403, C 404 and also had not started DEF block with sufficient supply of gypsum bags. 10. It has been submitted by the Learned Counsel for the Corporate Debtor that the Operational Creditor has not come to this Tribunal with clean hands and has suppressed the disputed set of facts about the unpaid operational debt between the Corporate Debtor and Operational Creditor in relation to the supply of NVK Gypsum and when such a dispute arises, the Arbitration Clause in the Purchase order can be invoked and this matter should be referred to Arbitral Tribunal as per the Arbitration and Conciliation Act, 1996. 11. The Learned Authorized Representative for the Operationa....
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....el and Authorized Representative for both the parties, the only point which fell for consideration and adjudication before this Authority is;- (i) Whether the Corporate Debtor has raised any dispute as against the payment of the sum as claimed by the Operational Creditor in the present petition before issuance of the Demand Notice? 14. A perusal of the typed set of documents filed by the Corporate Debtor would reveal the fact that there are series of e-mails which have been exchanged between the parties even before issuance of the Demand Notice. On 17.12.2018, the Operational Creditor has sent a mail to the Corporate Debtor to clear the outstanding dues of Rs. 14,58,176/- for which the Corporate Debtor has sent a reply e-mail, which is a....
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....d his balance payments. With warm regards, Uday 18. A fasciculus of the above e-mails as exchanged between the parties clearly posits the fact that there exists a 'dispute' between the parties even before the issuance of the Demand notice. Further, it may also be noted that the proceedings before this Tribunal is summary in nature and this Tribunal, unlike the Civil Court cannot indulge in the luxury of taking evidence, oral or otherwise as to its existence. 19. Further, the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited; held that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Noti....