TaxTMI 
TaxTMI 
2022 (4) TMI 994
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.... as an operational creditor by N. K Realtors Pvt. Ltd. (hereinafter referred to as the 'Applicant/Operational Creditor') before the National Company Law Tribunal ('Adjudicating Authority) against Mounthill Realty Pvt. Ltd. (hereinafter referred to as the 'Corporate Debtor') praying for: (a) An order for the initiation of the Corporate Insolvency Resolution Process (CIRP') against the Corporate Debtor. (b) An order for appointment of Interim Resolution Professional (IRP') Facts of the Case 3.1. The Operational Creditor is a Real Estate Marketing Service Consultant established in 1987, in Kolkata, West Bengal & provides marketing services to various real estate projects. The Corporate Debtor....
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....wo paisa only) is outstanding in terms of the agreement. The last bill/invoice raised by the operational creditor was on 30.06.2017 which was received but the corporate debtor failed and neglected to pay the said bill Annexure-B, pages 49 to 110 (Photo-stat invoice copies). 4. Submission by the Operational Creditor/Petitioner 4.1. The operational creditor submitted that in the circumstances as aforesaid, he issued a statutory demand notice Annexure-C, pages 111 to 126 (A copy of Demand Notice dated 07.01.2019 along with the postal receipt) under FORM 3 under sections 8 and 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 5 of the Insolvency and Bankruptcy Rules, 2016 dated 07.01.2019 demanding inter alia, the amount afores....
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....3)(c) of the code and that the application is thus not maintainable in the eyes of law and as such the same should be dismissed in limine. 5.3. The corporate debtor submits that the subject contract in question stipulates the mode of payment to the operational creditor which is the 'marketing Fees' and the said clause of the agreement also stipulates that the operational creditor firm is only entitled to get 2% cost on whatever properties they sell out of the 32700 sq. ft. area but the operational creditor has failed to sell the flats within the allocated 32700 sq. ft. in under the terms of the agreement. 5.4. The corporate debtor submits that there are a series of transactions between the parties for which several payments ha....
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.... of default and whether the said debt is more than or equal to the threshold limit under section 4. (1) Service of Demand Notice Statutory Notice in Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with postal registration receipt has been issued on 07.01.2019, but posted on 10.01.2019, which is evident from Annexure -C placed on record on page 111 of the petition. 7.2. That the demand notice has been received by the corporate debtor is also not in doubt, as there is a reply by him to the subject notice on 24.01.19, acknowledging the receipt of the notice on 12.01.2019, albeit it is not an acceptance of the amount claimed but points out a deficiency in the claimed amount vis-à....
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....of the Operational creditor states at point 4 that the corporate debtor in spite of the notice neither made any reply nor paid any amount. This is contrary to the fact that the corporate debtor had replied to the notice by way of the letter dated 24.01.2019, albeit he was late by 2 days, disputing the amount being claimed apparently emanating out of lack of reconciliation of the entire account which is a running account. Given the law laid down by Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd., (2018) 1 SCC 353 the court held that mere 'existence of a dispute' is not enough and the Court has defined a 'genuine dispute' as bona fide and truly existing before the receipt of the demand n....
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.... 98 (3rd entry from the bottom) of the application against the same invoice. As such we do not see how the operational creditor construes that this particular invoice dated 19.2.2013 remained unpaid and thought it fit to include in the notice under Sec-8. 8. Furthermore, there is nothing on record to show that the operational creditor had also been systematic and persuasive in asking for payment of its outstanding claim and has chosen to file the application without any in-house reconciliation and has chosen to casually include the oldest and the latest invoice in the demand notice in Form 3 of Rule 5. Whereas there is no provision for the payment of interest included either on the invoices or even in the agreement, the same has been cla....