TaxTMI 
TaxTMI 
2021 (5) TMI 113
X X X X Extracts X X X X
X X X X Extracts X X X X
....erational Creditors) to initiate Corporate Insolvency Resolution Process (in short, CIRP) against M/s. Tecknoweld Alloys (India) Private Limited (hereinafter referred as to "Corporate Debtor). The Corporate Debtor having its registered office at Plot No. 114 Developed Plots, Industrial Estate, Perungudi, Chennai-600096, Tamil Nadu. 2. The total debt due from Corporate Debtor to Operational Creditor No. 1 and Operational Creditor No. 2 is USD 326,725 exclusive of interest @ 10% per annum on the overdue amounts. 3. On perusal of this Application, the Operational Creditor No. 1 is engaged in the business of supplying High Carbon Ferrochrome ('materials'). The Operational Creditor No. 1 and Corporate Debtor entered into Sales Confirma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he aforesaid loss on account of non-payment by Corporate Debtor and also full powers to take and use all lawful ways to recover and retain the loss amount on account of non-payment by Corporate Debtor. 5. In lieu of indemnification received from the Operational Creditor No. 2, Operational Creditor No. 1 vide a Notice of Assignment dated 10.04.2019 again requested Corporate Debtor to pay the outstanding invoices bearing Nos. 9584, 9606 and 9508 to Operational Creditor No. 2 being the Subrogate-cum-Assignee of the outstanding debt out of the remaining outstanding debts of USD 160,000 solely on Operational Creditor No. 2's account. Thereafter, the Operational Creditor No. 1 sent several e-mails requesting Corporate Debtor to pay the outst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er annum to Operational Creditor No. 2 as subrogee-cum-assignee of Operational Creditor No. 1). There is an operational debt in respect of which a default has occurred, which warrants initiation of Corporate Insolvency Resolution Process (CIRP). 10. Learned Counsel appearing on behalf of the Corporate Debtor filed counter in which it is contended that there is a preexisting dispute in respect of invoices that were raised after May 2018. Insofar as two invoices are concerned viz. Invoice Nos. 9584 dated 15.06.2018 and 9606 dated 21.06.2018, the material that was supplied by the Operational Creditor No. 1 to the Corporate Debtor was "High Carbon Ferrochrome" whereas the above invoices relate to supply of "Boron Carbide" and they do not perta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....84 and 9606 and cannot question delivery at this stage. It is pertinent to highlight that Corporate Debtor has itself admitted in its Counter that it used the material supplied by the Operational Creditor No. 1. Thus, the Corporate Debtor's belated attempt to purportedly dispute the quality of material received is contrary to the well settled principles of law enshrined under the Indian Sale of Goods Act, 1930. Hence, the Corporate Debtor's reply is nothing but an attempt to establish a pre-existing dispute through smoke screen of clever drafting. 13. In the sur-rejoinder filed by the Corporate Debtor, it is submitted that the MPT Shanghai Trading Co. Ltd. which appears to be an affiliate of the Operational Creditor No. 1 had suppl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isting i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be and observed as follows; "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 debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand noti....