AI Drafter 
TaxTMI 
TaxTMI 
2020 (6) TMI 797
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....ompany " M/S ANR International Pvt. Ltd. & Others". 2. The business of the Operational Creditor of trading of goods such as Resin, Plastic and Granules, etc. Operational Creditor was a registered dealer in the UPVAT Act & CST Act vide TIN No. 09365717288 and also registered under Excise Act. The Applicant is the Proprietor of M/s Standard Impex. 3. Officials of the Respondent company had various meeting with Petitioner and its authorized representative/officer pursuant to buying the goods from Petitioner and after consultation with each other regarding price of goods, quality of goods and quantity of goods had purchased the goods from its place of business at G-241, Basement, Sec.-63, Noida, G.B. Nagar Uttar Pradesh from time to time. 4. Pursuant to orders placed by Respondent/ Corporate Debtor, Petitioner has sold the material ex-godown delivery directly from their Business Premises to them against respective invoices. The transaction of sales and part payments received pertains to the Financial Year 2015-16, 2016-17 & 2017-18. 5. As per the Operational Creditor's Books of account duly maintained in normal course of business, the amount recoverable from opposite party ....
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....y the customers of the Respondent upon putting the goods into use. v. The Applicant did not respond to the quality complaint made by the Respondent and thereafter, respondent issued another letter dated 16.10.2015 requesting the Applicant to understand the seriousness of the matter and cooperate in handling the concerns raised. vi. The Respondent continued to release payments to the Applicant for the goods that were of satisfactory quality and has not with-held payments despite facing complaints, losses as well as losing its customers due to extremely poor quality of goods. vii. The Respondent has written off the frivolous amounts claimed by the Petitioner. viii. In the absence of existence of "debt" and "default" and a clear existence of "dispute" relating to the "existence of the amount of debt", the instant Application deserves to be dismissed. 12. We have heard the Ld. Counsels for the Operational Creditor as well as Corporate Debtor and perused the averments made in the application, reply and documents enclosed with the same. 13. Ld. Counsel for the applicant in course of his argument submitted that the Operational Creditor has en....
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.... at page no. 19 & 21 of the reply and these letters are addressed to M/s Standard Impex, the applicant's firm, who supplied the goods to the Corporate Debtor. 18. At this juncture, we would like to refer the contents of the letters enclosed at page 19 & 21 of the reply and the same are quoted below:- "letter dt. 9/10/2015 Dear Sir, This refers to our several verbal complaints made to you against the quality of PVC Resins supplied to us during September and October. Please be informed that it seems here is mixing of Calcium Carbonate and granules/foreign particles in the supplies made by you. It seems that this material is of some odd lat/sweeping repacked in bags. We had supplied the material to our customers & on good faith they used the material for their production. Now suddenly we are receiving complaints that their batch is totally damaged and they are claiming huge compensation from us. We suggest that we make a joint inspection at the customer site to make an assessment of the damage. And Letter dt.16/10/2015 Dear Sir It is quite unfortunate that you are taking an evasive approach and net re....
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.... within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, 1[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 2[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 3[payment] of the operational debt in respect of which the default has occurred. Section 9: Application for initiation of corporate insolvency resolution process by operational creditor: *9, (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-sect....
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....pplication and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been 4[payment] of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process' shall commence from the date of admission of the application under sub-section (5) of this section. 22. Ifweshall read the Sections 8 & 9 of the IBC together then we find that before filing an application under Section 9 of IBC, an Operational Creditor is required to deliver....