TaxTMI 
TaxTMI 
2022 (3) TMI 198
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....or this additional amount which has been claimed by the Petitioner by way of random expenses like delay charges, khalapur expenses and travel charges, no supporting invoices have been produced. In fact, the Bench further notes that the claims regarding the delay charges, khalapur expenses, travel charges etc. has no documentary evidence regarding any agreement between the parties. The Bench also notes that the 37 invoices referred to by the Petitioner do not mention any payment terms. Only in 7 invoices an interest at 18% p.a. has been mentioned. Similarly, in none of these 37 invoices, barring one, any proof of payable amount on account of delayed payment has been mentioned. Only one invoice mentions in its terms a delay of 365 days. 30. The Bench takes note that this applicable rate of 2.25% as claimed by the Petitioner has never been a part of any of the invoices and it has been mentioned by the Petitioner only while drawing a summary table without any proof. Therefore, the Bench finds that all these charges like delayed charges, khalapur expenses, travel charges, for which no invoices have been raised are baseless claims, not based on any mutual agreement or any documentary p....
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....were returned and fresh cheques were issued by the Respondent Company. * Vide letter dated 15/05/2019, the Respondent confirmed a liability of Rs. 4 Crores in favour of the Appellant with a condition that in case the deposit of the cheque is requested to be delayed, the Respondent would pay interest at 1.92% per month till the date of realisation. A cheque no. 255124 dated 16/05/2019 for an amount of Rs. 4 Crores was issued. * Again, vide letter dated 30/05/2019, the Respondent confirmed that a payment of Rs. 4,16,18,466/- was payable in favour of the Appellant and another cheque dated 30/06/2019 was issued for this amount. But on 01/07/2019, extension of time was requested by the Respondent till 31/07/2019 and a cheque of Rs. 7,76,706/- was issued towards delayed payment charges and 1.92% penalty interest per month. * Subsequent to deposit of the cheques, both the cheques of Rs. 4,16,18,466/- and Rs. 7,76,706/- were dishonoured on the ground of insufficient ones. The Appellant issued a Notice under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'NI Act'), but there was no response. * The Appellant got issued a Section 8 Notice under the Code....
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....Limited & Ors.', Company Appeal (AT) (Insolvency) 1354 of 2019, has clarified that 'for filing Application under Section 9 of the Code, in case the Demand Notice would deliver in Form 3 of IBBI (Application to the Adjudicating Authority), Rules, 2016, within the submissions of the copy of the charges along with the Application in Form 5 is not a mandatory requirement, providing the documents to prove the existence of 'Operational Debt' and the amount in default is attached with the Application'. * The endorsement of the dishonoured cheques mentioned 'exceeds arrangement' but did not relate to forged signatures. This Tribunal in 'Sudhi Sachdev' Vs. 'APPL Industries Ltd.', Company Appeal (AT) (Insolvency) No. 623 of 2018 has held that 'pendency of case under Section 138/141 of the NI Act amounts to Admission of debt and not an 'existence of dispute''. * There is sufficient evidence on record to prove that the 'Operational Debt' is due in terms of detailed 37 invoices pertaining to high sea-sale, Statement of Debit Notes to the delayed payments, Ledger Accounts of the Respondent showing a Closing Balance of Rs. 4,16,18,466/- along with a signed and stamp Statement of Account as on....
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.... were actually no transactions for provision of goods. The Appellant has failed in its legal obligation to provide any such details as mandated u/s. 8 of the IBC. It is further pertinent to note that the Appellant failed to produce the aforesaid documents even at the time of inspection held on 19th December, 2019 at 12 pm citing that the same are only "supplementary" as specifically stated in the letter dated 20th December, 2019 annexed as Exhibit K to the Petition. I say that in the absence of any such proof of transactions, the said claim of the Appellant is merely an extortion based on false and fabricated letters, after forging my signature and thus the present Petition deserved to be dismissed in the limine with costs. I state that in view of the absence of details of the purported transactions including any documents to substantiate such transactions the issue of limitation under law arises. In the absence of relevant dates, amounts and quantity, I am not aware and deny of any/all transactions having taken place in the past three years for which any sums are due and thereby deny the legal validity and locus of this present Petition." * On 27/02/2020, the Adjudicating Author....
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.... by the Appellant herein has been obtained by them without taking the permission of the Adjudicating Authority. It is the case of the Appellant that the Respondent Company has taken different stands i.e., in their Reply to the Demand Notice dated 14/11/2019, the Respondent has submitted that the amount claimed is a 'Security Deposit' and pertains to the Leave and License Agreement. But in their Rejoinder to the Reply dated 08/01/2020, they have denied the same. The Respondent also denies that there was any supply of goods and services between the Appellant and the Respondent. 5. At this juncture, we find it relevant to reproduce Sections 5(20) & 5(21) of the Code as hereunder: "5(20) "operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; 5(21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the [payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 6. Learned Counsel for the Appellant placed reliance o....
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....ayments and also vide Letters of Credit. Hence, we are of the considered view that the amounts pertaining to 37 invoices have been paid by the Respondent. The same amounts reflect in Part IV of Form 5 of the Application claiming Rs. 4,16,48,466/-and Rs. 7,76,706/-. The delayed payment charges sought to be paid by the Appellant are not supported by any Agreement executed between the parties, based on which the Appellant could have exercised their rights to claim these amounts towards delayed charges. The interest charged towards penalty does not find a mention in any of the 37 invoices which are on record. The Journal Entries not supported by any other additional evidence cannot be 'solely' relied upon to prove that the amount claimed arises out of 'supply of goods and services' to fall within the ambit of the definition of 'Operational Debt' as defined under Section 5(21) of the Code. Further we are inclined to observe that the dishonour of the two cheques is a subject matter of the NI Act, 1881 and recovery of those amounts under the NI Act, 1881 cannot be said to be paid towards the supply of goods and services, specifically in the light of the absence of any such Agreement or in....