TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 540
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....was also sent by email to the Director of the Corporate Debtor, no reply whatsoever has been received from Corporate Debtor, including any notice of dispute with respect to the outstanding dues. The Corporate Debtor has also not made any payment after the receipt of the Demand Notice dated 18th December, 2018 and the last part-payment made by the Corporate Debtor was on 18th January, 2017. 2. Pursuant to the Court notice issued to the Corporate Debtor, reply was filed and it was submitted by Corporate Debtor that:- a) That the petition is not maintainable and has been filed with ulterior motives. The Operational Creditor is by means of this petition, trying to bypass the civil remedies available to them and wants to recover the alleged amount from the Corporate Debtor without establishing the dues. b) That the petition is not maintainable since the Operational Creditor has failed to comply with the obligator}' requirements of Section 9(3)(c), wherein the Operational Creditor was obligated to file a certificate, from its financial institution, confirming that there is no payment of debt by the Corporate Debtor. It may kindly be noticed that the Operational Creditor has file....
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.... Pustak Adhikari (Text Book Officer), Govt. of Uttar Pradesh. Non production of these proofs resulted in no payment by the Districts. Thus, even today when the Operational Creditor files these invoices the same are of no relevance, since they are not supported by any proof of delivery. f) That the sole intent of filing of these proceedings is that the Operational Creditor wants to defeat the arbitration clause between the parties and also not to get the dispute settled by a court of law and therefore, the Operational Creditor has devised this method of extorting money from the Corporate Debtor, as if the Corporate Debtor has also admitted the disputed amount. Further, the Corporate Debtor has never admitted any liability as alleged by the Operational Creditor and he himself has failed to raise a dispute regarding non-payment of money, whereas the Corporate Debtor by a letter had already intimated the Operational Creditor, that there is no more dealings and no further dues against each other in relation to the agreement of parties. The Operational Creditor never responded to the said letter, neither objected to the contention of Corporate Debtor in the same and so the Operational ....
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....uation that the Operational Creditor was never interested in getting the payment from the Govt. Department and thus did not even comply with clause 4.2 as well, which in turn stipulates that a representative of Operational Creditor, was supposed to accompany the representative of Corporate Debtor for recovery of dues from the Govt. Department. At no point of time in the contract the Operational Creditor ever cooperated with Corporate Debtor for recovery of clues from the Govt. Department. i) Further the Corporate Debtor issued a Work Order on 25.05.2015 and the Operational Creditor was supposed to supply the books as per the work order which was for Rs. 20,93,49,821.00 and not as alleged for Rs. 22,51,45,859.71/-. The fact is evident from the totalling the amount mentioned in the work order dated 25.05.2016, filed at Page 56 of the petition. Admittedly the Operational Creditor was never able to supply the goods in time nor as per the specifications mentioned by the Govt. department. j) Since admittedly the Operational Creditor was never able to supply the goods in time nor as per the specifications mentioned by the Govt. department, a letter dated 12.06.2015, was sent to the Co....
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....waited for another year to file this petition, which has been filed on 06.09.2019 only. 3. The Operational Creditor has filed rejoinder and asserted the following contentions: a) The Corporate Debtor has clearly admitted in its Reply that it received the Demand Notice dated 18th December, 2018 (hereinafter referred to as "Demand Notice") issued by the Operational Creditor to the Corporate Debtor. The Corporate Debtor has also admitted that no reply to this notice was sent by the Corporate Debtor to the Operational Creditor. No reason has been given by the Corporate Debtor for not responding to the Demand Notice, and it has been merely stated in the Reply that "The Corporate Debtor saw this letter very late and thus could not respond to the same." b) Thus, there is no dispute raised by the Corporate Debtor in response to the Demand Notice. c) The Corporate Debtor has also admitted that no amount has been paid by it after receipt of Demand Notice. 4. We have heard the Learned Counsel appearing for the Applicant/Operational Creditor and perused the averment made in the application, reply, rejoinder to the reply and additional affidavit along with documents filed on behalf of t....
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.... has not filed any inspection report or any other relevant document showing deficiency in quality of books supplied by the Operational Creditor. He further submitted that the amount for alleged deficiency in quality has already been deducted and has not been claimed in the Section 9 application. He further submitted that National Company Law Tribunal in the matter of Neeraj Papers Agencies vs. Rainbow Papers Limited C.P. IB No. 88/9/NCLT/AHM/2017, vide order dated 12th September 2017 held that since the Operational Creditor claimed the amount due to him after deducting the amount towards alleged defective goods, therefore, the dispute raised by the Corporate Debtor, for the first time at the stage of objection is not a bona-fide dispute. 10. He further submitted that since the application filed by the applicant is complete and the applicant has also enclosed Section 9(3)(b) affidavit and Section 9(3)(c) and there is no reply to the demand notice, therefore, the present application is liable to be admitted. 11. On the other hand, Learned Counsel appearing for the Respondent, in course of his argument submitted that during the pendency of the present proceeding, Operational Credito....
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....rther submitted that all the correspondence made by the Operational Creditor show that the amount may be paid only after recovery from the Government department, therefore, the amount cannot be defined as default under Section 8 of the IBC, 2016. 13. Now in the light of the submission raised on behalf of the parties, we shall consider the case in hand. 14. Since, Learned Counsel appearing for the Operational Creditor submitted that in para 14 (P) at page 13 of reply, the Corporate Debtor admits this fact that he has not sent the reply to the notice received under Section 8(1) of the IBC, 2016. Therefore, at this juncture, we would like to refer to the provision contained under Section 8 and 9 of the IBC, 2016. "Section: 8. Insolvency resolution by operational creditor (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid, operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and. manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) ....
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....orate 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 subsection (2) is complete; (b) There is no 3[payment] 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 - (a) 'The application made under sub-section (2) is incomplete; (b) There has been 1 [payment] of the unpaid operational debt; (c) The creditor has not delivered the invoice or notice fo....
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....at Section 8 and 9 cast a duty upon the operational-creditor as well as Corporate Debtor to act as per Section 8 and if they fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the Corporate Debtor can be taken into consideration. 16. At this juncture, we would also like to refer the decision reported in the case of Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 271, and we find that Hon'ble Supreme Court in Para 14 of the judgment held that: "It is equally well settled that in interpreting a statue, effort should he made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statue should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors." 17. In the light of that decision, when we shall consider the case in hand then we are of the considered view that....
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....is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (b) "debt" does not include money payable under a decree or order of a court." 21. Mere plain reading of the provision shows that when the payment of account of debt or of interest is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed on the time when the payment was made. Here in the case in hand, all the invoices are in between 3rd September, 2015 to 30th November, 2015, whereas the last payment was made on 18th January, 2017 which is within 3 years from the date of issuance of the invoices as required under article 137 of the Limitation Act, therefore, the last payment was within 3 years from the date of the issuance of the invoice. 22. Hence, in view of the Section 19, we are of the considered view that limitation runs from the last date of payment and when we shall count the date of limitation from 18th January, 2017 then we find that the present application is filed on 11th September, 2019, therefore, it is within....