2022 (3) TMI 951
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....onship and the Appellant used to supply certain goods whenever demanded by the Respondent. The Appellant raised the invoices and debit notes from time to time for such supplies but certain debit notes and invoices are due and pending for payment despite several assurances by the Respondent regarding their payment. 3. The Appellant has further stated that the outstanding dues of the Appellant Company is Rs. 32,08,640/- which includes Rs. 22,75,120 towards the principal amount and Rs. 9,33,520 towards interest and further interest of Rs. 76,270 accrued for the period of 16.06.2019 upto 19.09.2019 against invoices and debit notes raised by the Appellant and which are included in the section 9 application. It is his claim that despite several reminders/requests demanding payment the dues were not paid in full. As part of payment the Respondent issued a cheque bearing No. 886600 for Rs. 15,00,000 /- and gave it to the Appellant aa payment of goods received but when the Appellant presented the above-mentioned cheque to the concerned bank for encashment, the same was dishonoured vide a return memo dated 15.01.2019 with the remark "payment stopped by drawer". Thereafter, the Appellant iss....
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....for onward supply to the Respondent to show that the delay in supply of goods was due to Allied Strips Ltd. and, therefore, the Appellant is not responsible for any delay in supply of goods and materials to the Respondent. 6. The Ld. Counsel for the Appellant has also urged in arguments that the Respondent has given no reply to specific assertions made by the Appellant regarding forging and fabrication of documents (refer to Pg. 14 of Respondent's Reply to the Appeal) and he has himself relied on unreliable and inauthentic documents to establish his claim (refer to Pg. 172 of the Appeal Paperbook) wherein an FIR made on the Online FIR website has been averred as proof of FIR filed for loss of cheques and actually Online FIR is just a website not related to the police department in India and as such the said FIR is not a legitimate FIR filed before the Indian Police. 7. In reply, the Ld. Counsel for the Respondent has argued that nine invoices have been included in the section 9 application in Part -IV and they have to be considered in totality for deciding on the existence of debt and they cannot be bifurcated to leave out disputed invoices and only consider the remaining invoice....
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.... and the Corporate Debtor starting from 28.02.2018 till 26.09.2018 to infer that the there was a pre-existing dispute regarding the delay in timely supply of materials/goods which resulted in issuing of the debit notes and thus the quantum of operational debt. Paragraph 6 of the impugned order is as follows:- "6. On perusal of Application as well as the documents enclosed, the email communications between the operational creditor and the Corporate Debtor clearly establishes the fact that there was pre-existing dispute between both the parties. The email communication trail starting from date 28.02.2018, 03.07.2018, 05.07.2018 till 26.09.2018 between the Operational Creditor and the Corporate Debtor substantiate the fact that there was delay in supply of material to the Corporate Debtor due to which the Corporate Debtor was forced to purchase the goods at a higher price from the other sellers. The fact that a meeting was called upon on dated 16.02.2018 to address the issues relating to delay in supply and debit notes being issued by the corporate Debtor substantiate the fact that there was a pre-existing dispute between the parties prior to the issuance of demand notice." 11. The....
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....td. Plant they were unable to supply the pending orders with Power2SME Pvt. Ltd. implying that any delay in supply of materials was on account of Allied Strips and not their fault. 14. A perusal of emails dated 03.07.2018 sent by the Corporate Debtor to Operational Creditor/Power2SME and its reply dated 04.07.2018 sent by the Operational Creditor makes the issue of dispute between the parties quite clear. The relevant part of these emails attached at Pg. 168 of Appeal Paperbook is as follows:- "Email of 2018 sent by the Corporate Debtor Dear Sir, Please Find the attached debit note due to our supply fail & raw material rate increase. Because which purchase order send to you that time raw material rate was 47.0/kg but you not dispatched the material so our supply fail & heavy loss due to the raw material rate increase. Then we had purchased raw material 57.0/kg. Now your balance as per our books 1025119 Rs. This is request to you please collect the cheque of balance amount which is ready in our plant scan copy of cheques & Debit note already attach please check. Note:- Please update your books as per our closing balance which is now 1025119 Rs. Because we are sending th....
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.... Corporate Debtor for an amount of Rs. 1025119.75 were not accepted by the Operational Creditor and quite obviously there was a dispute which is evidenced by the emails quoted above. 17. The section 9 Application which is attached at Pg. 86 to 127 of the Appeal Paper Book shows very clearly that nine invoices mentioned earlier Judgment were all taken together as part of the operational debt owed by the Corporate Debtor to the Operational Creditor. We find force in the argument of Ld. Counsel for the Respondent that the operational debt relating to the invoices cannot be bifurcated so that only such invoices which are not disputed are considered for the admission of Section 9 application. There is quite obviously a major dispute relating to supply of eighty-four tons of raw material, regarding which there was a big delay in supplying causing disruption production schedule and also loss of money due to increase price of raw material that had to be sourced from the open market to the Corporate Debtor. Subsequent issue of two cheques dated 03.07.2018 and an earlier cheque for Rs. 15 lakhs which was dishonoured go to show that the payments were not being made invoice-wise but were bein....