AI Drafter 
TaxTMI 
TaxTMI 
2022 (1) TMI 1072
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.... is not entitled to raise any invoices for the period beyond 08.03.2018 as the corporate debtor had already issued termination notice in advance i.e. on 22.02.2018 in accordance with the terms and conditions stipulated in the work order dated 17.03.2017. Further, during the course of argument, it has been brought to the notice of this bench that Invoice No. 133 dated 05.02.2018 annexed with the objections of the respondent said to be issued by the operational creditor, marked as Annexure R-3, placed at page No. 26 shows total amount after tax as Rs. 6,37,654.00, whereas, invoice of even number (i.e. invoice No. 133) placed at page No. 16 as Exhibit "D" of application reflects total amount after tax as Rs. 5,90,000.00. Further, description of the invoice No. 133 dated 05.02.2018 annexed by the applicant and the invoice No. 133 sent to Corporate Debtor are not the same. 13. Furthermore, it is found that in exhibit "A" at page No. 7 to the application, in case of bill No. 133 dated 05.02.2018 and the due date is shown as 06.02.2018 i.e. the very next day. Similarly, in case of bill No. 157 dated 05.03.2018, due date is shown as 06.03.2018 i.e. the very next day. In case of bo....
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.... a resolution applicant who can continue to run the corporate debtor as a going concern, every effort must be made to try and see that this is made possible." 2. Submissions of the Learned Counsel appearing on behalf of the Appellant: It is submitted by the Learned Counsel for the Appellant that the Appellant is engaged in business of providing Commercial and Industrial Machines on a rental basis. On 17.03.2017, the 'Corporate Debtor' issued a Work Order to the Appellant, the rent for which was finalised on monthly basis. On 19.01.2018, the 'Corporate Debtor' sent an email asking the Appellant to provide Bill Nos. 33 and 72, in reply to which, the Appellant sent a copy of the ledger showing the amount 'due and payable' by the 'Corporate Debtor'. Email dated 24.01.2018 was also sent by the Appellant requesting the 'Corporate Debtor' to release the balance payment. On 22.02.2018, the 'Corporate Debtor' issued an email seeking to demobilize the machines and requested to return the machines as per the Work Order. On 26.02.2018 and on 08.03.2018, the Appellant vide emails requested the 'Corporate Debtor' to provide copy of the Accounts Statement and attached the invoice for ....
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....to stop the service from the end of February, 2018 and demobilize the machinery. Four Invoice Nos. 157, 178, 22 and 39 amounting of Rs. 5,90,000/- each were never served on the 'Corporate Debtor'. It is also submitted that there was no service supplied by the Appellant for the aforesaid invoices. The interest calculated @18% per annum has never been agreed to between the two parties. There is no evidence furnished by the Respondent that they had supplied the services subsequent to February 2018. Invoice No. 133 dated 05.02.2018 is a forged and fabricated one and the amount shown in the invoices is Rs. 5,90,000/-, whereas the email dated 09.03.2018 figures an amount of Rs. 6,37,654/-. The Ledger Books are also fabricated as the amount of Rs. 24,75,000/- paid by the Respondent was deleted by the Appellant. The Learned Counsel drew our attention to pages 102 and 106 of the Appeal Paper Book in support of his case. Learned Counsel for the Respondent submitted that on the contrary there is balance of Rs. 15,93,499/- lying with the Appellant after deducting Rs. 24,75,000/-, the entries of amount (the amount deleted from the ledger) from the outstanding....
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.... of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, [if any, or] record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the [payment] of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding [payment] of the operational debt in respect of which the default has occurred. 7. In the present case, the 'Corporate Debtor' has produced the copy of the email dated 22.02.2018 for discontinuing the services of the Appellant/'Operational Creditor' herein. This email is not denied by the Appellant herein: 8. It is also the case of the 'Corporate Debtor' that services with respect to Invoice Nos. 157, 178, 2....
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.... upon the factors mentioned in Section 9(5). 21. In para 38, this Court cautioned: (Mobilor Innovations case, SCC "38.... We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties." Finally, the law was summed up as follows: (SCC p. 403, para 51) "51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(ii)(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. Ther....
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.... after the award, at least till the final adjudicatory process under Sections 34 and 37 has taken place." 10. When there is no denial with respect to the email dated 22.02.2018 (reproduced in para 7) there are no substantial reasons given for raising the bills for the subsequent period when there is no documentary evidence on record that the services were rendered with respect to the Work Order subsequent to 22.02.2018. Therefore, we are of the view that the dispute raised by the 'Corporate Debtor' is not a spurious or legally feeble argument but is substantiated by sufficient evidence. We are satisfied by the material on record that there is a 'Pre-Existing Dispute' "prior to the issuance of the Demand Notice‟ and hence we are of the considered view that the ratio of 'Mobilox Innovations Private Limited' (Supra) is squarely applicable to the facts of this case. As we hold that there exists a dispute between the parties, we do not wish to go into the other issues raised regarding the Partnership Deed. 11. For all the aforenoted reasons, this Appeal fails and is accordingly dismissed. No Order as to costs. 12. The Registry is directed to upload the Judgement on the we....