TaxTMI 
TaxTMI 
2021 (10) TMI 1084
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....ction 61 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as the 'Code') challenging the Impugned Order dated 20.03.2020 passed by the Learned Adjudicating Authority (National Company Law Tribunal, Indore Bench, Ahmedabad) in CP (IB) No. 202/9/NCLT/AHM/2018, by which Order, the Insolvency Application preferred by the Appellant under Section 9 of the Code was dismissed on the ground of 'Pre-Existing Dispute' and also on the ground that it was barred by 'Limitation'. 2. Submissions on behalf of the Learned Counsel for the Appellant: It is submitted that steam coal was last supplied by the Appellant to the Respondent Company on 14.11.2013 to Mandideep Plant and on 18.11.2014 to the Nagpur Plant; that the alleged Debit N....
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....Learned Counsel vehemently denied that there was any dispute regarding the quality or quantity of the supply of steam coal and that there was any Test Report stating that the quality was substandard. Learned Counsel placed reliance on the Judgement of the Hon'ble Supreme Court in 'Mobilox Innovations Pvt. Ltd.' Vs. 'Kirusa Software Pvt. Ltd.' (2018) 1 SCC 353, in 'Rajiv Kumar Aggarwal' Vs. 'Panipat Texo Fabs Pvt. Ltd.', 2018 SCC OnLine NCLAT 656 and in 'Anoop Sushil Dubey' Vs. 'National Agriculture Co-operative Marketing Federation of India Ltd.', 2020 SCC OnLine NCLAT 674 in support of his contentions. 3. Submissions on behalf of the Learned Counsel for the Respondent: Learned Counsel submitted that the Debit Note dated 24.03.2017, the ....
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.... outstanding sum of Rs. 3,32,612/-. Further as the Respondent rejected steam coal worth Rs. 5,05,282/-, there was a credit of Rs. 1,72,670/- which had to be adjusted by the Appellant. For the Mandideep Plant, the Appellant supplied goods for Rs. 6,31,152/-, for which the Respondent generated a Debit Note for Rs. 4,58,482/- levying an outstanding sum of Rs. 1,72,670/-, which is the same sum which had to be adjusted for the excess payment made by the Respondent for the Nagpur Plant, therefore no amount was payable by the Respondent to the Appellant. The Learned Counsel relied on the Judgements of the Hon'ble Supreme Court in 'M/s. Capital Partners' Vs. 'Reliance Defence and Engineering Ltd.' [2017 SCC OnLine NCLT 2485], in 'Kalpataru Proper....
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....the said Mr. Rege was under probation and the subject email was not sent under his instructions. Curiously, after the email dated 05.08.2015, the Appellant has remained silent. There is no communication on record with respect to any payments 'due and payable', between the period 2015 and 2018. 6. The Hon'ble Supreme Court in 'Babulal Vardharji Gurjar' Vs. 'Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.', 2020 SCC OnLine SC 647, has addressed to the Applicability of Section 8 of the Limitation Act and observed that there should be a proper foundation to be laid regarding acknowledgement of debt. 7. In the instant case, in para 4 of the Section 9 Application, which deals with 'particulars of Operational Debt' in column 1(c) the date on w....
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....nce the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupp....
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....ng in production losses. It is the main contention of the Learned Counsel appearing for the Appellant that these Debit Notes were belatedly raised by the 'Operational Creditor'. The fact remains that there was a running account between both the Companies and the Appellant was supplying steam coal to both the Plants that is Mandideep Plant and Nagpur Plant to the Respondent Company and amounts were adjusted in the ledgers for supply of steam coal. 13. The Hon'ble Supreme Court in para 45 of 'Mobilox Innovations Pvt. Ltd.' (Supra) has observed as follows:- "45. Going by the aforesaid test of "existence of a dispute", it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring fur....