TaxTMI 
TaxTMI 
2021 (5) TMI 709
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....tant Appeal is as under: i) The Appellant / Operational Creditor -'Solenis Chemicals India Pvt. Ltd.' has supplied chemicals and other materials to fulfil their requirements on day to day basis to the Respondent / Corporate Debtor-' Arjun Pulp and Paper (India) Private Limited' under which various invoices Invoice no. 0139 dated 12-05-2015 for Rs. 1,45,931/-, Invoice no. 0326 dated 09-06-2015 for Rs. 4,18,837.50/-, invoice no. 0401 dated 24.06.2015 for Rs. 1514700.00/-, invoice No. 0671 dated 13.08.2015 for Rs. 1220687.55/-, invoice no. 0951 dated 29.09.2015 for Rs. 1342024.20/-, invoice no. 0824/16-17 dated 01.08.2016 for Rs. 186,640.88/- invoice no. 1098/16-17 dated 20.09.2016 for Rs. 170059.50/- invoice no. 1099/16-17 dated 20.08.2016 for Rs. 395302.28/- invoice no. 1233/16-17 dated 30.09.2016 for Rs. 288068.40/- invoice no. 1268/16-17 dated 07.10.2016 for Rs. 192045.60/- invoice no. 1601/16-17 dated 23.11.2016 for Rs. 480114.00/- were raised as per the terms and conditions contained in the said invoices. ii) The Operational Creditor has claimed an amount of Rs. 63,54,412/- which is due and payable by Corporate Debtor along with interest at 24% per annum from the date of a....
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....n page no 14 of the typed set filed along with the petition. 7. In compliance with the aforesaid order, the Official Liquidator appointed M/s Ravi & Raghu, Chartered Accountants, one of the firm of Chartered Accountants from the panel maintained by his office to reconcile the said 11 Invoices. 8. In the report of Official Liquidator where it is mentioned that at page 686 of the Appeal Paper Book Vol.-II reads as under: "While going through the purchase order copies submitted by the Corporate Debtor, there is a clause which says that 100% advance payment along with material in respect of invoices Nos:1098/16-17, 1233/16-17, 1268/16-17 and 1601/16-17 and 50% advance along with materials in respect of invoice Nos:824/16-17 and 1099/16-17 and the corresponding transactions in the bank statement were also found. However, the Corporate Debtor could not provide any other material evidence/confirmation from the Operational Creditor that the said payment of Rs. 17,30,000/- pertains to the above said invoices only when there was old outstanding dues pending for payment to the operational creditor. Further the claim of the Corporate Debtor that Rs. 10,00,000/- were also paid ag....
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.... Book. iii) The Group CFO also confirmed debt for Rs. 63.37 vide email dated 16- 01-2018, annexed at page No. 351 of the Appeal Paper Book. iv) As per the ledger / account confirmation as communicated in email dated 11.01.2018 by the Appellant, we have shown 11 invoices as outstanding and the same running ledger was never denied and disputed anywhere in the pleadings. The Ledger was filed as reply to report of Ld. Official Liquidator and is annexed at page no. 356 to 362 of the Appeal Paper Book." The above mentioned account confirmations, clearly establishes the debt and the default made by the Corporate Debtor / Respondent. 12. It is further submitted that in view of the judgment of Hon'ble Supreme Court of India reported in 2018 (1) SCC 353 'Mobilox Innovations Private Ltd. Vs Kirusa Software private Ltd.' "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." 33. xxx......Mere a dispute giving a colour of genuine dispute or illusory, raised for the first time while replying to the ....
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....to Rule 55 of the NCLT Rules, 2016 and had altered its case at a belated stage. 19. It is further submitted that the Affidavit dated 16.05.2019 (page 288 of Appeal Paper Book Vol.-I) filed before the Ld. AA, the Appellant had altered its claim in so far as to include an alleged debt due to an independent entity, M/s Connel Bros. Company (India) Pvt. Ltd. ("Connel") that is stated to have been taken over by the Appellant vide an agreement. Neither in the statutory notice, nor in the Application filed before the Ld. Adjudicating Authority had the existence of the said agreement been disclosed or had the entity Connel ever been mentioned. The addition of another claim was recorder by the Ld. Adjudicating Authority in its order dated 25.04.2019 (page 558 of Appeal Paper Book Vol.-II). The said alteration of the claim at such a belated stage would render the statutory notice and petition defective since no opportunity was afforded to the Respondent to suitably reply to the same. 20. It is further submitted that the Ld. Adjudicating Authority has rightly passed the impugned order and rightly recorded the finding there exists a dispute between the parties therefore, the Application ....