2020 (10) TMI 772

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....n 9 of the Insolvency and Bankruptcy Code 2016 ('the Code') of the Respondent SGS Pharmaceuticals Pvt. Ltd., for the alleged default on the part of the Respondent in clearing the debt of Rs. 21,81,444/- (Rupees Twenty Lakh Eighty One Thousand Four Hundred Forty Four Only) including the principal amount of Rs. 19,73,965, towards the material supplied by the Applicant. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. The Applicant is involved in the business of providing turnkey solutions for clean rooms/ operation theatre, it is also involved in providing firefighting, electricals, HVAC, civil construction solutions. ii. The applicant has provided the HVAC system....

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....nsequent to the notice issued by this Tribunal, the Respondent filed its reply in which the following contentions are made: i. That the Respondent is not the defaulter and had paid full amount to the Applicant. The amount claimed as default is not the recoverable amount from the respondent and it has been falsely and illegally claimed by the applicant. ii. That this petition by the applicant is not filed through proper authorization or board resolution. That the authorization letter of the Insolvency application is not a Board of Resolution, the heading of it is "To Whomsoever it may concern", it is not a proper authorization to file the present Insolvency Application. The respondent submits that the Board applicant fails to do work in ....

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....moreover the site was incomplete and the respondent had to get the remaining work done by himself. viii. The Respondent submits that it is not liable to remit any single penny to the applicant and the present application is liable to be dismissed. 3. The Applicant has filed written submissions in which he has reiterated the certain points raised by him in the petition and they are as follows: i. That the authorization letter has been signed by the Director of the Applicant Company, who authorized Mr. Santosh Kumar in proper capacity to act on its behalf. ii. The Applicant submits that the demand notice was successfully delivered at the correct address of the Respondent i.e. SGS Pharmaceuticals Private Limited and the same was incorre....

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....ble before the Hon'ble Tribunal. The Respondent cited the Hon'ble NCLAT order in Palogix Infrastructure Private limited v. ICICI Bank Limited. ii. The Respondent submitted that the dispute between the applicant and the Respondent is commercial one and therefore its is not maintainable as if a dispute which is specific related to Commercial transactions then it should be raised before the Commercial Court under the Commercial Courts Act, 2015. iii. The Respondent submits that the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. v/s Kirusa software Pvt. Ltd. (2018) 1 SCC 353 held that the existence of dispute or arbitration proceedings necessarily be pre- existing, that is to say, it should exist prior to receipt of the ....