TaxTMI 
TaxTMI 
2020 (1) TMI 1423
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.... Appellant is an MSME (Micro, Small and Medium Enterprise) and filed Section 9 Application under Insolvency and Bankruptcy Code, 2016 (IBC - in short) against the Respondent. The Appellant claimed in the Application that the Corporate Debtor is a special purpose vehicle company incorporated for execution of project, that is, rehabilitation, strengthening and four laning of Srinagar to Banihal section in the State of J&K. The Appellant claimed that in 2014, an engagement letter dated 21st November, 2014 was signed between the Operational Creditor and the Corporate Debtor and fee was fixed at Rs. 22 Lakhs for availing project monitoring services, which were to be rendered by the Appellant. The Appellant raised invoices between 24.11.2014 till....
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.... "5. It is the case of petitioner that various invoices were raised from 24.11.2014 till 16.02.2017 and the Corporate Debtor has released payments for the services in full up to 06.10.2016 and there was a substantial delay in making part payment and the amount in default is Rs. 73,52,122.92/-. On perusal of record by this Adjudicating Authority, it is observed that the Petitioner themselves in the petition has stated that the subject matter has already been taken to the MSME facilitation council for redressal in terms of MSME Development Act, 2016 and Arbitration proceedings between the Operational Creditor and Corporate Debtor have been commenced with the failure of conciliation between the parties as per section 18(3) of the MSME Deve....
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.... the Adjudicating Authority in the Impugned Order, which is reproduced above, was apparently wrong because the Counsel was yet to take up the proceeding which was filed by the Appellant for getting relief which is clear from the letter dated 15th October, 2019 sent by the MSME Council (Page 89). The Counsel states that though this was after the Impugned Order, it clearly shows the Authority informing that no conciliation proceedings had started or Arbitrator was appointed. It is argued that even if the arbitration is pending that by itself is no bar to move an Application under Section 9. The Counsel referred to engagement letter (Page - 48 at Page - 53) to state that when the invoices were raised in 2017, no disputes were ever raised by th....
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....279/2008. He referred to portion from the para - 8 of the Judgement as under:- "The issuance of TDS certificates does not amount to an acknowledgement of defendant within the meaning of Section 25 of the Indian Evidence Act and the Full Bench judgement of this Court in the case of Jyotsna (supra) puts the matter beyond doubt. This certificate is primarily to acknowledge the deduction of tax at source. The certificate does not refer to any amount of loan or even the rate of interest which is payable on the said principal amount. It does not refer to any contract between the parties and even a transaction." The Counsel further relied on Judgement in the matter of "Utility Powertech Limited Vs. Amit Traders" reported as MANU/DE/187....
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.... (b) the quality of goods or service; or (c) the breach of a representation or warranty" 10. Section 17 of MSME Act reads as under:- "17. Recovery of amount due.-For any goods supplied or services rendered by the supplier, the buyer shall be liable to pay the amount with interest thereon as provided under section 16" Sub-Section (1) of Section 18 of that Act reads as under:- "(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprise Facilitation Council." Thus the context of the word "dispute" in Section 18 takes colour from Section 17 of MSME Act. It i....