TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 1179
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....e and 4 lane sites in the States of Gujarat and Maharashtra. 3. Facts of application filed by Operational Creditor in short are that: * under various purchases orders, the Corporate Debtor placed orders for conduction of ATCC traffic surveys on 2 lane and 4 lane sites in the States of Gujarat and Maharashtra and raised invoices for the same. As per the Clause 1 of the Payment terms under the purchase orders, the amount was payable within 60 days from the date of submission of invoices. Operational Creditor has sent all the invoices along with the cover emails as proof of submission of invoices. * Outstanding amount under the relevant invoices that are due for payment annexed as Annexure F. Contents of Annexure F are reproduced below: * That being aggrieved by the non-payment of invoices, Operational creditor issued a demand notice dated 25.11.2019 of INR 3, 97,17,481/- under the provisions of the Insolvency and Bankruptcy Code, 2016. That the corporate debtor has sent reply to Demand Notice via letter dated 28.12.2019 which was received by Operational creditor on 01.01.2020. Further, Operational Creditor has replied to the letter sent by corporate debtor via letter dated 09.....
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....ted. * The fact of legal notice being served by the operational creditor on the corporate debtor on an earlier occasion is also highlighted by the corporate debtor. The major contention with respect to legal notice is that the different amounts have been asked in legal notice and in demand notice. 5. In response to the reply submitted by Corporate Debtor, Operational Creditor further submitted that in every case of rejection of survey report, Operational creditor is entitled for re-submission of the reports. It is alleged by the Operational creditor that Corporate Debtor has only annexed only those mail conversations which corporate debtor has sent regarding certain reports but Operational Creditor immediately re submitted the survey reports to the Corporate Debtor and those resubmitted survey reports have been duly accepted by Corporate Debtor. 6. On the contention of the rejection of Reports, in response to the Demand Notice's reply received from Corporate Debtor, Operational Creditor submitted that there have been only 3 sites and as per Clause 5 r/w. Clause 7 of the Purchase Orders, the total value of the penalty to be levied upon for the delay in submission of survey, ....
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....d to bring the existence of any dispute if any or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice of the Operational Creditor within 10 days of receipt of such notice i.e. 25.11.2019. But the Corporate Debtor sent the reply to the demand notice to the Operational Creditor on 28.12.2019, which is beyond the stipulated time period. Therefore, the said letter would not be considered as notice sent by the Corporate Debtor to the Operational Creditor showing the existence of any dispute or record of the pendency of the suit of arbitration proceedings filed before the receipt of such notice as per the IBC, 2016. * As far as plea of pre-existing dispute is concerned, Corporate Debtor has failed to satisfy us that there is a pre-existing dispute. The mails which the corporate debtor is annexing is with respect to the rejection of the reports, which operational Creditor has resubmitted but Corporate debtor has concealed the fact of resubmission. As per the clauses mentioned in the Purchase order, for every failed report, Corporate debtor is entitled for resubmission and if there is delay in resubmission, there are provisions of Penalty....
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.... (2) is complete; (b) there is no repayment 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 information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application 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 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 applicat....