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TaxTMI 
TaxTMI 
2022 (1) TMI 1133
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....019. The clerical correction on 23.06.2020 has been made by the Adjudicating Authority only in respect of Sl No. in CP(IB). 2. While passing the impugned order dated 18.06.2020 in CP(IB) No. 1622/ND/2019 at paragraphs 24 to 26, the Adjudicating Authority had observed the followings: "24. Mere plain reading of the above provision shows that the "dispute" includes a suit or arbitration proceedings relating to the existence of the amount of debt, or the quality of goods or service or the breach of a representation or warranty. Here in the case in hand, the Corporate Debtor has raised a dispute regarding the quality of goods, which is one of the dispute u/s 5(6) of the IBC and in support of that they have placed reliance upon two letters which are enclosed at page Nos. 19& 21of the reply, in which it is specifically mentioned that Corporate Debtor has raised a question relating to quality of goods supplied by the Operational Creditor on 09.10.2015 and also sent a reminder on 16.10.2015 in which it is alleged that the Operational Creditor is not responding to their quality complaint. As we have already stated in the aforementioned para that although the Corporate Debtor has ....
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.... 2017. The unpaid invoices relate to 'Financial Year 2015-16'. 4. The OC has sent the 'Demand Notice' on 27.02.2019 (appearing at page 107- 109 of the Appeal Paper Book) while the reply to the demand notice has been issued by the CD to OC on 08.03.2019 (page 110-112 of the Appeal paper book). The demand notice is asking for payment of outstanding debt amounting to Rs. 59,83,712/-. The CD has raised the issue of dispute in the reply to the demand notice. It is the case of the OC that an amount of Rs. 59,83,712/- is still outstanding as on 31.03.2019. The OC/Appellant has also stated that a sum of Rs. 1,49,83,718/- was outstanding in favour of the Appellant as on 31.03.2017 from CD &CD confirmed the same and even CD after October, 2015 has made part payment of Rs. 3,46,75,000/- towards its outstanding liabilities. All this constitutes a further admission of the Appellant's Operational Debt. The so-called dispute as per the Appellant raised by CD is a manufactured dispute of two communications dated 09.10.2015 & 16.10.2015 raising an alleged dispute regarding the quality of goods supplied by the Appellant/OC. It was also alleged by the OC that an inspection of the damage goods call....
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....and not payable to OC. They have also cited the Hon'ble Supreme Court Judgment of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd in Civil Appeal No.9405 of 2017. It was also stated by the CD that they have stoped placing orders on the OC. 6. We have heard Ld. counsels for both the parties and have analyzed the information provided by them and the relevant provisions of the Code and are having the following observations: a. As far as question of Limitation is concerned, it is very much clear that though the last invoice was raised on 05.10.2015 but the last payment having been made on 19.06.2017 and there is a running account admittedly towards its outstanding to the Appellant. It would extend the period of limitations as per provision of the Limitation Act. As the Appeal has been filed on 24.06.2019 which is within three years from the last transactions of June 2017. b. The case of initiation of CIRP is governed by provisions of Section 8 & 9 of the Code which are reproduced below for clarity: Section 8: Insolvency resolution by operational creditor. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of un....
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....corporate debtor, if available;] (d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and (e) any other proof confirming that there is no payment of any unpaid operational debt by the corporate debtor or such other information, as may be prescribed.] (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no [payment] of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the informat....