TaxTMI 
TaxTMI 
2022 (4) TMI 995
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....Operational Creditor is a Public Company Limited by shares which was incorporated under the Companies Act, 1956 with CIN No: U27310TZ1995PLC006101. The Registered office of the Operational Creditor is situated at A-9, SIDCO Industrial Estate, Kurichi, Coimbatore, Tamil Nadu-641021. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Private Limited Company with CIN:U28910TZ2015PTC021110 which was incorporated on 10/02/2015 and the Registered Office of the Corporate Debtor as per the Application is stated to be situated at 1/490R, SF No. 186/2, Anna Nagar Road, Near Kathir College, Neelambur, Coimbatore, Tamil Nadu, 641026. From Part III of the application, it is seen that the Operational Creditor has not proposed the name of the "Interim Resolution Professional" and left it to the discretion of this Tribunal to appoint the same. 3. The Affidavit verifying the application is placed at page no's I-XII of the Application typeset and Mr. Rajesh Jagadeesan, the Joint Managing Director of the Operational Creditor/Applicant has sworn the Affidavit as the authorized representative of the Operational Cre....
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....19 and such reconciliation is placed in the Additional typeset dated 02.09.2021 filed by the Petitioner. This in itself prima facie proves the existence of 'Operational debt' and 'default' committed by the Corporate Debtor. 10. The Ld. Counsel for the Applicant stated that the Operational Creditor is a shareholder of the Corporate Debtor and this is no way bars him to pursue this present application and the Corporate Debtor recognizes the Applicant as the Operational Creditor. 11. The Ld. Counsel for the Applicant submitted that Statutory Demand Notice in Form-Ill was issued to the Corporate Debtor and the same was received by the Corporate Debtor on 28.09.2019. Further, the Ld. Counsel stated that, the defence of pre-existing dispute namely, OS No. 712 of 2019 pending on the file of the District Court, Coimbatore is puerile and illusory as the same was not notified within 10 days of the receipt of Form-Ill demand notice in accordance to Section 8(2) (a), IBC, 2016 to the Operational Creditor. The Ld. Counsel for the Applicant went on to state that, the said suit was numbered only on 18.10.2019 which is not prior to the issuance of the Statutory Demand Notice,....
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....foresaid payment. 17. The Ld. Counsel for the Corporate Debtor further states that subsequently by MOU dated 8.09.2017 operational creditor undertook to pay 5.50 Lakh USD on or before 15.10.2017 and another sum of 5.50 Lakh USD on or before 15.04.2018, however nothing to that accord was remitted by the operational creditor. 18. The Ld. Counsel placed emphasis on the report dated 15.09.2020 given by Brown Winick law firm annexed as Pages 33-36 of the Respondent's Additional typeset of documents filed on 15.09.2021. In conclusion of the report, it was stated that the financial difficulties of the Corporate Debtor could be avoided if the Operational Creditor had honoured their obligations towards capital infusion and supply and not deliberately tried to ruin the ISPT India operations. 19. Further the Ld. Counsel added that the Demand notice sent by the Operational Creditor is undated and the amount due and payable for the invoices were disputed and the same can be evidenced from the reconciliation of Accounts dated 19.03.2019. 20. Therefore, the Ld. counsel for the Corporate Debtor submitted that, this Section.9 Application of the Operational Creditor is liable to be d....
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....cation to Adjudicating Authority) Rules, 2016, speak of Demand Notices by the Operational Creditor and applications in the following terms: 5. Demand notice by operational creditor (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely.- (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding payment referred to in subsection (2) of section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole-time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any. 24. It was stated by the Operational Creditor that demand notice was served on the Corporate Debtor on 28/09/2019 and the postal tracking report to evidence the same is attached at page 7 of the Applica....
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....lead to the rejection of Section 9 application. In the above context, we may refer to Judgment of this Tribunal in "Neeraj Jain Vs. Cloudwalker Streaming Technologies Private Limited" (Company Appeal (AT) Ins. No. 1354 of 2019) decided on 24th February, 2020 in paragraph 50 following observations have been made by this Tribunal: "...Even otherwise, mere failure to reply to the demand notice does not extinguish the rights of the Operational Creditor to show the existence of a pre-existing dispute..." DEFECTIVE MATERIAL AND FREIGHT CHARGES ETC. 25. In this regard Ld. Counsel for the Operational Creditor has attached customer satisfaction survey record/score card in respect of quality delivery and cost assessment of supplies made, which gives scores of more than 90% for various periods. The Operational Creditor in the submissions made before this Tribunal had omitted the freight charges claim by the Corporate Debtor and the dispute prevalent in that regard, between both the parties. CONFIRMATION OF BALANCE AND RECONCILIATION STATEMENT 26. At this stage it is important to refer to the reconciliation statement dt. 19.3.2019 filed by the Operational Creditor by way o....
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....015 which was later shifted as per MOU between the parties to 2017 and 2018 and even that could not materialize. Annexure 1 (page-8 to 12 of application) provides the details of various invoices and debit notes which are said to be due and payable by the Corporate Debtor. The first date is 13.06.2017 and the last date of invoice/debit note is 18.03.2019. These dates mentioned supra are much later than the MOU dates which were 15.02.2012 and 08.09.2017. 32. In view of the facts and circumstances mentioned Supra, we are of the view that there exists a dispute between the parties which is much prior to issuance of the From-III Demand Notice by the operational creditor to the corporate debtor which relates to not investing the amounts in the share capital of the Corporate Debtor and not honoring their financial and contractual commitments and the differences in the accounts which are evident from the reconciliation statement filed by the Operational Creditor that invoices are disputed. 33. Further, as per the decision of the Supreme Court in Mobilox Innovations Private Limited vs. Kirusa Software Private Limited this Tribunal need not be satisfied as to whether the said defense i....
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.... JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF ISPT ISPT2/1819/Jobwork/0011 05/09/2018 38,610.0 JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF SPT JOB WORK INVOICE OF ISPIT JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF ISPT JOB WORK INVOICE OF ISPT ISPT2/1819/Jobwork/002 05/16/2018 ISPT2/1819/Jobwork/004 05/30/2018 ISPT2/1819/Jobwork/008 07/30/2018 ISPT2/1819/Jobwork/009 08/24/2018 ISP12/1819/Jobwork/012 09/30/2018 ISPT2/1819/Jobwork/014 10/16/2018 ISPT2/1819/Jobwork/015 10/22/2018 ISPT2/1819/Jobwork/029 02/02/2019 ISPT2/1819/Jobwork/034 02/14/2019 ISPT2/1819/Jobwork/035 02/14/2019 33,000.0 36,300.0 49,500.0 52,800.0 24,090.0 33.000.0 27.390.0 18,480.0 16,170.0 2,970.0 Sub Total-c 3,32,310.00 ADD: TCS NOT ACCOUNTED IN ISPT INDIA ACCOUNTS TAX COLLECTED AT SOURCE 28.02.2019 Coins RoundingOff diff 19,810.0 (0.69) B Sub Total-d Sum of A +la+b+c+d) 19,809.31 50,10,938.23 Document 2 RECONCILIATION BETWEEN ISPT AND ISML AS ON 19TH MARCH 2019 SPT Book bulasa 19/03/201 45ML m....