TaxTMI 
TaxTMI 
2021 (9) TMI 758
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.... masjid East, Mumbai-400009, India. 3. The Respondent/ Corporate Debtor, namely Pioneer Carbide Private Limited, was incorporated on 9th March, 1999 with CIN- U27101ML1999PTC005692. The Registered Office of the Corporate Debtor is situated at: Upper Baliyan, Umtru Road, Ri-Bhoi, Byrnihat, Meghalaya-793101, India. 4. It is submitted by the Petitioner that a work order dated 19.04.2017 was made by and between the Operational Creditor and the Corporate Debtor, binding the Operational Creditor to transport various goods like as Ferro Silicon from Upper Baliyan, Umtru Road, Ri-Bhoi, Byrnihat, Meghalaya-793101 to the various parts of India. The Operational Creditor duly transported the said goods to the various parts of India. 5. It is further submitted that the Operational Creditor raised 6 (six) bills upon the Corporate Debtor for the unpaid operational dues of Rs. 4,13,950.00.The Corporate Debtor after receiving the bills/invoices did not raise any objection regarding in any manner whatsoever. The Corporate Debtor failed to make any payments of the bills dated- 16.02.2018; 03.03.2018; 06.03.2018; 20.03.2018; 29.05.2018 and 20.06.2018. Subsequently, the Operational Creditor du....
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....ng the payment of freight charges of the Operational Creditor for the transportation services rendered by them for the period 24.07.2015 to 20.06.2018. 9. The Petitioner submits that that the Corporate Debtor replied to the notice dated 22.07.2019 vide letter dated 09.09.2019 stating that claims made by the Operational Creditor is not correct and concocted. The Letter stated that one consignment was sent to IISCO Steel Plant, Burnpur, under Invoice No. 0087 and material value of Rs. 23,02,612.00 (Rupees Twenty Three Lakhs and Two Thousand Six Hundred Twelve) through the OC , M/S Surat Goods Transport Pvt. Ltd. Builty No. 8130004700 dated 21.06.2017 and when the consignment reached its destination at IISCO Steel Plant, the consignment was rejected by the IISCO Steel Plant due to mixing of dust with the original material Ferro Silicon sent from the factory . Thereafter, a police case was registered on 05.07.2017 by the Pioneer Carbide Private Limited. i.e. the Corporate Debtor with Byrnihat PS, Meghalaya, against the Transporter, Truck Driver, Truck owner for Criminal Breach of Trust. 10. The Petitioner further submits that the Letter dated 09.09.2019 also mentions that the Cor....
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....ated 19.04.2017 was issued to Surat Goods Transport Pvt. Ltd. under clear acknowledgement and acceptance of Operational Creditor thereby amongst other as per Clause 4 of the said Work Order: "In case of delay beyond delivery schedule, non- delivery police report should be made available to us with value of our consignment which shall be refunded to you after realization of our claim from the insurance company". Copy of the work order is attached herewith and marked as Annexure- 3 of the reply-on-affidavit. 17. The Respondent further submits that one consignment of Ferro Silicon was sent to SAIL IISCO Steel Plant on 21.06.2017 vide truck no. NL02L1644 under Invoice No. 0087, Consignment Note no. 8130004700 which was rejected on 29.06.2017 by IISCO Steel Plant due to replacement of original material in transit by the carrier. The formal intimation from IISCO Steel Plant was received on 04.07.2017 vide IISCO Steel Plant Letter No. RM/40/2017/750. Thereafter, FIR dated 05.07.2017 was duly lodged with Byrnihat Police Station against the applicant/Operational Creditor Transporter/Truck owner including its Truck driver. And in said regards an intimidation was given to the Operationa....
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.... that the Corporate Debtor had made a counter demand vide notice dated 21.07.2017 under section 10 under Carriers Act to the tune of Rs. 23,02,612.00 (Rupees Twenty Three Lakhs Two Thousand Six Hundred Twelve only) and without settling the same, have initiated a notice vide No. SGTPL/HO/Gwt/1705/19 dated 17.05.2019 for payment of Rs. 5,58,781.00 (Rupees Five Lakhs Fifty Eight Thousand Seven Hundred only) and the said notice was duly replied by Corporate Debtor vide no. PCPL/156/19-20 dated 28.05.2019. Copy of Notice vide No. SGTPL/HO/Gwt/1705/19 is attached herewith and marked as Annexure-15.and a copy of reply by Corporate Debtor vide no. PCPL/156/19-20/195 dated 28.05.2019 is attached herewith and marked as Annexure-16. 22. The Respondent submits that the Operational Creditor again sent a Notice on 24.06.2019 through its legal department without signatory name which was duly replied by Corporate Debtor vide reply No. PCPL/156/19-20/382 dated 08.07.2019 and the said was duly attached with notice from Byrnihat Police dated 07.06.2019. 23. The Respondent further submits that even after the position was made clear to Operational Creditor in reference to its claim, the ....
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....ing dispute. It is submitted that the applicant/ Operational Creditor was engaged by the Corporate Debtor for transportation of Ferro Silicon to various plants of steel authority of India limited vide order no. TCPL/156/1718/145 dated 19.04.2017 (Annexure no.3 of affidavit in opposition at page no. 14) and (Annexure 2 of series of the application at Page No. 26), which was clearly acknowledged by the Operational Creditor and amongst others it contained clause No. 4 that "In case of delay beyond delivery schedule, with value of our consignment which shall be refunded to you after realization of our claim from insurance company." (ii) In this present case one consignment of Ferro Silicon meant to be sent to SAIL, IISCO steel plant on 21.06.2017 vide truck no. NL02l1644 under invoice No. 0087 (Annexure -4 of Reply affidavit at Page No. 15), Consignment Note No. 8130004700 (Annexure -5 of Reply affidavit at Page No. 16) was rejected on 04.07.2017 by Steel Authority of India Limited, IISCO Steel Plant due to replacement of original material in transit by the carrier i.e. Operational Creditor M/S Surat Good Transport Pvt. Ltd (Annexure-6 of Reply affidavit at Page No. 17). There....
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....y affidavit at page no. 27) and rejection of the claim by the insurance company on account of theft on 01.03.2021 (Annexure 2 of the counter reply of the Affidavit of corporate Debtor at Page 14). 28. That it is further submitted that the Operational Creditor has duly admitted in their counter reply to affidavit at paragraph no. 9, line no. 4 "that the applicant submits that there exists a dispute between the parties but the same relates to different transaction." 29. Therefore, from the entire records it is crystal clear that the Operational Creditor has acted under contract and had been maintaining a running account consisting of several transactions (Annexure 1 copy of ledger account of Counter reply of affidavit by the Corporate Debtor at page no. 7-13). 30. It is submitted that it is no longer res-integra that once the operational creditor has filed an application which is otherwise complete ,the adjudicating authority has to reject the application under section 9 (5) (II) (d) of the IBC if there is a record of dispute. What is required is that the corporate debtor must bring to the notice of the Operational Creditor the existence of a dispute or the fact that a suit ....
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....was raised and the Operational Creditor is not even clear as to against which bill they are raising their demands and only on that account the application is liable to be rejected with costs to the Corporate Debtor. 33. That it is submitted that the bills in respect of which the present proceedings have been initiated are dated 16.02.2018, 03.03.2018, 06.03.2018, 20.03.2018, 29.05.2018, 20.06.2018 at Page 58 of the application which totals to a sum of Rs. 4,13,990.00 (Rs. Four Lakhs Thirteen Thousand Nine Hundred Ninety Only) along with interest stands claimed at Rs. 5,58,781.00 (Rupees Five Lakhs Fifty-Eight Thousand and Seventy Hundred Eight One Only). 34. A perusal of the statement of account annexed to the application at page 69 would reveal that an amount of Rs. 8,09,431.00 (Rs. Eight Lakhs Nine Thousand Four Hundred Thirty-One Only) was paid on 09.05.2018 by the Corporate debtor to the Operational creditor and further an amount of Rs. 5,16.037.00 (Rs. Five Lakhs Sixteen Thousand and Thirty-Seven Only) was paid on 14.09.2018 by the Corporate debtor to the Operational creditor (at page 16 of Counter reply on affidavit) thereby totally to a sum of Rs. 13,23,468.00 (Rs Thir....
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....e Ltd; Civil Appeal No. 1137 of 2019 at Supreme Court of India. 6. Allied Silica Ltd V. Tata Chemical Ltd; (2021) 4 SCC 515. 39. That the Corporate Debtor humbly submits that in view of the attending facts and circumstances of the instant case and the law as laid down by the Hon'ble Supreme Court of India, the instant application filed by the Applicant/ Operational Creditor is liable to be dismissed with costs to the Corporate Debtor. 40. The Petitioner has further submitted in its affidavit dated 14.07.2021 that: i. That the Respondent's claim that the Applicant has tried best to conceal/suppress material facts by not disclosing the facts relating to the FIR dated 05.07.2017, Complaint dated 04.12.2018 as well as the notice dated 21.07.2017 in our Company Petition is totally misleading in as much as the Applicant has neither concealed not suppressed any material fact since the said FIR, Complaints and the Notice relates to a different transactions not relating to the subject transaction, which shows that he Corporate Debtor has wrongly and deliberately trying to club the transactions and make out a wrongful claim, and in that view of the matter, the content....
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....the Documents, Affidavits filed. It is found the following from the Documents, Affidavits submitted by both the sides: i. A work order dated 19.04.2017 was made by and between the Operational Creditor and the Corporate Debtor, binding the Operational Creditor to transport various goods like as Ferro Silicon from Upper Baliyan, Umtru Road, Ri-Bhoi, Byrnihat, Meghalaya-793101 to the various parts of India. ii. The Operational Creditor was engaged by the Corporate Debtor for transportation of Ferro Silicon from the manufacturing unit of the Corporate Debtor to various plants of Steel Authority of India Limited situated in different parts of India and for that the Work Order No. PCPL/156/17-18/145 dated 19.04.2017 was issued to Surat Goods Transport Pvt. Ltd. under clear acknowledgement and acceptance of Operational Creditor thereby amongst other as per Clause 4 of the said Work Order: "In case of delay beyond delivery schedule, non- delivery police report should be made available to us with value of our consignment which shall be refunded to you after realization of our claim from the insurance company". iii. In the present case, one consignment of Ferro Sil....
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....ontention of the CD that it is a running account, not paid on the basis of each invoice, is found to be correct. vii. The OC has admitted in its affidavit [counter reply to affidavit at paragraph no. 9, line no. 4] "that the applicant submits that there exists a dispute between the parties but the same relates to different transactions." On the other hand, the argument of the OC that, it is not a running account does not hold good as the payments are made by the CD in consolidated manner. It is also observed that the OC has filed its bank account (HDFC) for the period 01.05.2018 to 15.05.2018 (page 69 of the Application) but it has enclosed the entries of the account only up to 09.05.2018 just before the date of payment by the CD on 10.05.2018. Moreover, it has not filed its Bank Statement for the date of 14.09.2018, when the CD has paid Rs. 5,16,037.00 (Rupees Five Lakhs Sixteen Thousand Thirty-Seven Only). Had the OC filed the above bank statement, it could have been proved by OC itself that this is a running account. viii. It appears that the OC has not filed its bank statement of the relevant period deliberately to justify its claim that it is not a running ac....