TaxTMI 
TaxTMI 
2020 (10) TMI 495
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....nal Company law Tribunal, Indore Bench at Ahmedabad') in CP (IB) No. 374 /9/NCLT/AHM/ 2018. The Operational Creditor is M/s. Jayhind Steel Traders (Respondent No.1). 2. The Adjudicating Authority has initiated 'Corporate Insolvency Resolution Process' (for short 'CIRP') against the Corporate Debtor in accordance with the relevant provisions of the Code and has appointed Mr. Gopal Krishana Saraswat, 'Interim Resolution Professional' with a direction to follow the provisions of Section 13, 14 and other relevant provisions of the Code. 3. Initiation of CIRP is based on the following findings:- a) Existence of operational debt is above Rs. One Lac; b) Debt is due; c) Default has occurred on 30.11.2016; d) Petition has been filed within the limitation period as the date of default is 30.11.2016 and the petition has been filed on 11.07.2018. e) Existence of any dispute, prior to the notice issued by the Operational Creditor is not found. (Para 17 of the impugned order dated 13.03.2020). f) Defaulted amount is Rs. 1,81,61,422.00 as per respective invoices enclosed with the Petition. g) Date of invoice is between....
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....unt of Rs. 1,81,61,422/- for Debt due for the period of April 2016 to March 2018, which includes the principal amount of invoice and interest as per Part -IV, clause -2 amount claimed to be in default and the date on which the default occurred here the amount is Rs. 1,81,61,422/- and the date on which default occurred is silent. c. The Appellant has also submitted that a group firm of the Respondent No.2 Company viz. "Saturn Infra" has purchased material for Rs. 14,90,678/- only as against which the Respondent No.1 has received payment of Rs. 42,00,000/- through Canara bank Account No.3353201000167, thereby leaving a credit balance of Rs. 27,09,322/- in favour of the Respondent No.2 company. It is also stated by the Appellant that once client of the Respondent No.2 company M/s. Bhagwati Constructions, has admittedly made a direct payment of Rs. 23,34,617/- to the Respondent No.1 for which its advocate Mr. Hiren K.Dudhiya has also issued legal notice dated 11th Sept. 2018. The Appellant has also submitted a list claimed to be fabricated and false invoices raised by Operational Creditor. The Appellant has provided a list of 27 invoices with dates amount to Rs. 1,04,19,944/. ....
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.... two parties and has gone into rough weather from March, 2018. It is not in dispute that both the operational creditor and the corporate debtor were maintaining Running Account. 12. It is also observed that the operational creditor is making all attempts to realize the payment and conveniently used I & B Code, 2016 for faster realization. 13. It is also observed that the present case involves the need for reconciliation between the parties and to firm up a particular amount and there is multiple date of default as the purchase order seems to have a condition that payment will be released 30 days after receipt of material (various purchase orders have different payment terms) and other conditions as given below as for example page 292 of the Appeal paper book: a. Payment Terms - Payment will made 60 days after receiving the material b. Delivery - you will dispatch the entire ordered quantity immediately from the receipt of the order. Test certificate should be given along with commercial invoice with material. c. Transportation - You shall make arrangement of transportation to send the material to our site. Transportation charge is in you scope. ....
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....provisions of the Code, it is incumbent on the Adjudicating Authority to reject the petition/application as per the provisions of the Section 9 of the Code. It is also very much clear in this case that there is a dispute of the Debt and dispute resolution mechanism is also provided in the purchase order. Since the I&B Code, 2016 debars the application of the Code for recovery of money as well as if there is a dispute then also petition/application requires to be rejected. 16. The Hon'ble Supreme Court has already held in Mobilox Innovations Pvt. Ltd., Vs. Kirusa Software pvt. Ltd. [2018] 1 SCC 353, that IBC is not intended to be a substitute for recovery forum. It is also laid down that wherever there is existence of real dispute, the IBC provisions cannot be invoked. 17. For better and fuller appreciation of the present subject matter in issue, it is useful for this Tribunal to make a pertinent reference to Section 8 & 9 of the Code which provides mechanism for Operational Creditor, which runs as under: Section 8 - Insolvency Resolution by Operational Creditor: 8. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of un....
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....t by the corporate debtor; and (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- ....