AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 1944
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....Creditor" on 15.06.2017 by invoking the provisions of Section 9 of the Insolvency and Bankruptcy Code (hereinafter as Code). 3. In the requisite Form, under the Head "Particulars of Corporate Debtor" the description of the debtor is stated as, 'Innovative Ideals & Services (India) Private Limited' (hereinafter as Debtor) having registered address at E/2020, Skypark, Oshiwara Garden Road, Off. Ajit Glass Road, Oshiwara, Goregaon (West), Mumbai-400104. 4. Further under the Head "Particulars of Operational Debt" the total amount in default is stated as 42,29,060/-, along with interest @ 24% on the principal amount, amounting to 8,37,006/- computed from 05.06.2015 upto 31.03.2016. Background of the Case : 5, The Operational Creditor is a part of the Kalpataru Group which is engaged in the business of Real Estate Development and allied activities. The Corporate Debtor approached the Kalpataru Group , offering to supply Video Door Phones (VDP) and the Home Automation Sytem Units (Automation System) for the Operational Creditor's ongoing project named as 'Kalpataru Harmony'. Consequently, Kalpatru Group issued a Letter Of Intent (LOD dated 15.02.2012 to the Corporate Debtor based on q....
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....on account of short supply and overcharging respectively, of the Home Automation System modules and have, thus, collectively, been overcharged a sum of 42,29,060/-, for 188 flats in the said project. 10. As the payment is outstanding the Operational Creditor has issued a Notice U/s. 433 (e) of the Companies Act, 1956 for initiation of Winding-Up Petition and as the Debtor has neglected the payment, thereafter the Petition for Winding-Up has been preferred before the Hon'ble Bombay High Court. 11. After enactment of the Code the Petition has been Transferred to this Bench and then after the Operational Creditor has complied with the procedural formalities under the Code. Submissions by the Operational Creditor : 12. The Operational Creditor has submitted that on 05.06.2015, the Corporate Debtor was called upon by a letter of its Advocate, to refund the excess amount along with interest @2A4% p.a., to which the Corporate Debtor replied baselessly denying the claim. In fact, the Corporate Debtor raised a counter claim of 274,08,068/- against the Kalpataru group companies. Thereafter, various correspondences were exchanged from 20.08.2015 to 18.11.2015, between the Operational Cred....
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....ere sent to visit the site to check the complaints. However, the engineers were not allowed to enter. The Petitioner did not want any joint inspection for the Corporate Debtor to establish that the complaints made by the petitioner are false and baseless. 20. The Corporate Debtor states that each automation kit per flat was for 23,855/- and not 24.854/- as claimed by the Petitioner. The said price was revised pursuant to further negotiations and additional benefits taken by the Operational Creditor from the Corporate Debtor in terms of services after installation of systems. Moreover, it is submitted that the Petitioner Company has been merged into one Kalpataru Retail Ventures Private Limited vide an order dated 20.07.2017 passed by NCLT, Mumbai Bench in CSP NO. 470/2017 and CSP NO. 478/2017. Hence, the claim of the Corporate Debtor for a sum of 74,08.068/- against the Kalpataru Group for the supply of goods ordered and services provided at various sites of the petitioner is sustainable against the Operational Creditor. 21. The Corporate Debtor denies the supply of inferior quality goods or that the lesser quantities of the products have been supplied. The petitioner approved an....
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....a preexisting dispute as defined under section 5(6) of the IBC which reads as follows: (6) "dispute" includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty; 28. In the present case, it seems that the Petitioner is not sure about its claims and have mentioned different and inconsistent calculations of the alleged excess amount. The correct position of the outstanding debt has not been revealed to this Bench till date. It is clear that a "dispute" as to the existence of the amount of debt was already in existence as discussed supra, prior to the issue of Demand Notice under Section 8 of the Code and the same has been raised by the Corporate debtor time and again. Furthermore, the Corporate Debtor had never discussed the alleged better technology with the operational creditor prior to supplying only 4 modules per flat. The Corporate Debtor could not have unilaterally altered the number of modules to be supplied under the Purchase Orders. Hence, the question of quality of goods & services provided requires more intrusion and whether there has been a ....
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....rdingly, the Petition does not deserve Admission. 31. In respect of the definition of "dispute". the law is now very much settled as held by several Hon'ble Courts, most importantly the decision of Mobilox Vs. Kirusa (supra) in which an observation has been made that the Adjudicating Authority is to examine at the stage of admission that whether there is a plausible contention which requires further investigation and on assertion of fact a dispute is supported by evidence. The expression used in Section 8(2) of the Insolvency & Bankruptcy Code "existence of a dispute, if any" is very significant because the Legislature is deemed not to waste its words or to say anything in vain hence every word is significant, as held in Mithlesh Singh Vs. Union of India, (2003) 3 SCC 309. It is also important to clarify that if the intent of the Legislature was to limit the dispute to only a pending Suit or Arbitration (refer Section 5(6) Definition of Dispute) then there was no requirement to add in Section 8(2)(a) of the Code "existence of a dispute, if any". A harmonious and co-joint reading is, therefore, required. A view has also been expressed that the definition of "dispute" as per Sec....