TaxTMI 
TaxTMI 
2020 (10) TMI 678
X X X X Extracts X X X X
X X X X Extracts X X X X
....4/- and Rs. 53,561/- deposited in the Central Government Account on 13.04.2015, 30.04.2015 and 24.07.2015 respectively. The Corporate Debtor on 16.06.2015 paid out of running account balance an amount of Rs. 10,14,541/- paid to Operational Creditor and deducted TDS of Rs. 1,01,455/- and deposited in the Central Government Account on 24.07.2015. The Corporate Debtor vide email dated 15.10.2015 confirmed that an amount of Rs. 50,32,028/- payable to the Operational Creditor for the supply and installation of 804 vehicle trackers and payment of commission and managed and professional services. The Corporate Debtor vide email dated 11.12.2015 issued Purchase Order for an amount of Rs. 3,67,200/- to the Operational Creditor for 30 Nos. Hippo GPS vehicle trackers without SIM, including installation, configuration and setup of an amount of Rs. 12,000/- each. In response to the Operational Creditor acceptance of the said purchase order, the Corporate Debtor forwarded amended Purchase Order (Purchase Requisition No. PRD07) dated 12.12.2015 through email dated 12.12.2015. Based on the amended Purchase Order the Operational Creditor supplied 30 Nos. GPS vehicle trackers to the Corporate Debtor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted version of the actual state of affairs with a liberal dose of outright lies. b. At the outset, the Respondent most respectfully submits that the present application is not maintainable either in law or on facts and hence the same deserves to be dismissed at the threshold itself in view of the fact that though the Petitioner has alleged that it has supplied 804 numbers of vehicles tracking system to the Respondent, amounting to Rs. 50,32,028/-, which is payable, however, the Petitioner has failed to submit/enclose any document with regard to proof of supply of such number of tracking systems vis-a-vis invoices/bills issued by the Operational Creditor for the disputed period, nor has it submitted any delivery challans, purchase orders, copies of the contract etc. c. The present Petition filed by the Petitioner is based on wrong and baseless allegations despite knowingly the fact no 804 GSM vehicle tracking systems were ever supplied by the Operational Creditor. It is relevant to mention here that the Respondent vide its reply dated 03.12.2018 to the demand notice issued by the Operational Creditor had categorically denied the supply of 804 GPS as alleged by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the effect that an amount of Rs. 53,99,228/- (Rs. 50,32,028/- + Rs. 3,67,200/-) is outstanding due payable to the Operational Creditor. c. It is submitted that the Hon'ble Supreme Court in the matter Mobilox Innovations Pvt. Ltd. (Corporate Debtor) versus Kirusa Software Pvt. Ltd. (Civil Appeal No. 9405 of 2017), [in paragraph No. 24 on page No. 63 of the judgment] held that-What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing - i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. It is further submitted that in the instant case, the Corporate Debtor has not brought to the notice of the Operational Creditor the 'existence' of dispute pending between the parties. d. It is further submitted that the Hon'ble Supreme Court considered various formulations referred to in the Judgment that can be helpful in determining whether there is a genuine dispute in a particular case [in paragraph No. 37 on page No. 82 of the judgment) held that - In our view a 'genuine' dispute requires that the dispute be bona fide and truly exist in fact; the grounds....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itioner itself. The Respondent has enclosed the letter received from its customer Soaring Spirits Pvt Ltd, which proves that the Petitioner has failed to discharge its contractual obligation. d. The Respondent submitted that the ledger maintained by him has been enclosed by the Petitioner in the petition at page nos.22 & 24 alongwith the e-mails exchanged between them. Further, the Petitioner received an amount of Rs. 35,33,175/-directly from the distilleries, which is evident from page No. 44 of the petition. On a careful perusal of the documents submitted by the Petitioner itself, it is evident that it is the Petitioner, who owes money to the Respondent totaling to Rs. 78,19,829/-. e. The Petitioner has claimed that there is an admitted liability of Rs. 50,32,028/- against 804 tracking systems and Rs. 3,67,200/- against 30 GPS tracking systems supplied to the Respondent, totaling to Rs. 53,99,228/-. The claim of the Petitioner is merely based on the e-mail sent by the CD and purchase order for 30 GPS tracking systems. In this regard, the Respondent respectfully submits that the Petitioner has concealed the material facts from this Hon'ble Tribunal and adopte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e admitted. On the other hand, Learned Counsel appearing for the Corporate Debtor in course of his argument submitted that the Operational Creditor has failed to enclose the document, which he has enclosed in his rejoinder, at the time of filing of the application, therefore, he is liable to be guilty for placing the mis-statement before this Adjudicating Authority. He further submitted that the Operational Creditor has claimed that he has raised debt with regard to 30 GPS vehicle trackers in the demand notice dated 28th November, 2018 but demand notice shows that no such demand has been raised. He further submitted that the claim of the Operational Creditor is barred by limitation. The Corporate Debtor failed to fulfill his contractual obligation and he also filed to produce the ledger/ statement proving the debt. 13. Now in the light of the submissions raised on behalf of the parties, I would like to take up the limitation issue at first. I have gone through the averments made in the application, reply and rejoinder filed by the respective parties and I find, as per the averments made in Part IV of the Application, the date of raising the invoice are mentioned and it is also m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Operational Creditor. Therefore, in such circumstances, I am unable to accept the contention of the Corporate Debtor that Rs. 3,67,200/-has been paid by the Corporate Debtor to the Operational Creditor. Therefore, in my view, the amount of Rs. 3,67,200/- claimed by the Operational Creditor is the defaulted amount in response to the bill raised on 14th December, 2015 is still due and that has not been paid by the Corporate Debtor to the Operational Creditor. Therefore, in view of Article 137 of the Limitation Act, the limitation runs from the date when the right to apply accrues here in the case in hand, when I shall place reliance upon the invoice raised on 14th December, 2015, of course, it is mentioned 12th December, 2015 at page 11 of the application but this is, in my opinion, due to typographical error, because the document shows it was raised on 14th December, 2015 and the present application is filed on 11th December, 2018. 19. Therefore, it is within 3 years from the date of 14th December. 2015. Hence, I am unable to accept the contention of the Learned Counsel appeared for the Corporate Debtor that the debt is barred by limitation, rather, I am of the considered view....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an operational creditor to the corporate debtor demanding 3[payment] operational debt in respect of which the default has occurred." 23. Mere plain reading of the provision contained under Section 8 of IBC, 2016 shows that on the occurrence of default, the Operational Creditor is required to do following thing:- i. Deliver demand notice of unpaid operational debt, or ii. Deliver a copy of invoice demanding payment of the amount involved in the default to the Corporate Debtor, or iii. In the prescribed form, if these conditions are fulfilled then the demand notice delivered by the Operational Creditor will deem to be a valid demand notice. 24. In the light of the aforesaid facts, when I shall consider the case in hand, then I find that the demand notice was delivered. It was delivered in the prescribed form and the unpaid operational debt is shown in the demand notice, even the invoices against which the demand notice was delivered is mentioned at Para-7 of the demand notice. 25. So, I find, no force in the contention raised on behalf of the Corporate Debtor that the demand notice was not properly delivered. 26. Apart from the aforesaid facts, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....no dispute as required under Section 8(2) of the IBC, 2016 has been raised, after receiving the demand notice, therefore, I am unable to accept the contention of the Corporate Debtor that there is a pre-existing dispute between the parties prior to the delivery of the demand notice even after receiving the demand notice no such issue was raised in the reply sent by the Corporate Debtor to the Operational Creditor. Hence, I find, no force in the contention raised by the Corporate Debtor. 31. At this juncture, I would also like to mention this fact while considering the submissions of the parties on the point of limitation, I have referred the invoice raised in respect of the payment of 30 numbers of vehicle trackers and the amount mentioned in view of the invoice i.e. Rs. 3,67,200/- and I hold that although the amount has been admitted by the Corporate Debtor in his reply but it has not been paid by the Corporate Debtor, which would be evident from the certificate issued by the Bank. 32. Hence, in my considered view that amount is still due and there is default and Corporate Debtor is liable to pay that amount. 33. So far as the dispute regarding quantity / amount is concer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under subsection (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part TV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eedings against the 'Corporate Debtor'. Submission is made on behalf of the Appellant that the amount disputed by the 'Corporate Debtor' amounts to existence of dispute but such submission cannot be accepted. It does not come within the meaning of existence of dispute. Dispute raised regarding quantum of amount in the absence of any suit or arbitration or other evidence, it cannot be said to be pre-existing dispute." 35. Now in the light of the aforesaid decision, when I shall consider the case in hand then I find, here in this case also dispute is regarding the quantum of amount and not regarding the quality. 36. Therefore, at this juncture, I would also like to refer the decision of Hon'ble Supreme Court in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited- 2017 1 SCC OnLine SC 353", wherein the Hon'ble Supreme Court observed: "33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e., on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has been raised and the amount is more than 1 lakh. Since these contentions are fulfilled then the Adjudicating Authority has no option but to admit the application of the Operational Creditor. 38. Considering the aforesaid circumstances, this Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Corporate Debtor. Accordingly, this petition is admitted. A moratorium in terms of Section 14 of the Insolvency & Bankruptcy Code, 2016 shall come into effect forthwith staying:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal right or beneficial interest therein; (c) 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the rec....