TaxTMI 
TaxTMI 
2022 (5) TMI 990
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....suitable for insoles, used from men and women shoes. b. It is submitted that the Operational Creditor shipped material to the Corporate Debtor and issued Invoice No. 423777 dated 02.02.2017 to Corporate Debtor for the amount of Rs. 12,21,663.65/-, but the Corporate Debtor defaulted in making payment of operational debt. c. It is submitted that the payment of default was occurred first time on 02.02.2017, when first Invoice No. 423777 was issued to the Corporate Debtor by the Operational Creditor. d. Furthermore, the Operational Creditor sent an e-mail dated 15.01.2018 for reminder of making the payment of outstanding debt to corporate debtor, but corporate debtor failed to reply the said email. e. The applicant sent demand notice under Section 8 of the code on 28.11.2018 calling upon the corporate debtor to pay the total amount of Rs. 12,21,663.65/-. The applicant submits that the notice had been duly served on the corporate debtor. The Copy of demand notice along with postal receipts and the tracking reports has been annexed. Accordingly, prayed for acceptance of the present petition. 2. On behalf of the respondent, the detailed reply has been file stating that Operationa....
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.... legal notice on 28.11.2018. It is strange that Mr. Abhishek Anand, was instructed to raise the notice, where the GPA in favour of Mr. Pawan Kapoor was executed thereafter on 24.01.2019. Therefore, Mr. Vivek Goel, might have engaged Mr. Abhishek Anand, wherein the applicant herein has engaged Mr. Dushyant Tiwari and Mr. Priyam Aggarwal as a counsel to file present application. Further, it is submitted that respondent had duly replied to the notice dated 28.11.2018. Thus, there was a clear dispute between the parties, hence, the present petition is not maintainable. The respondent also relied upon citations Phillips India Limited Vs. Goodwill Hospital & Research Center Ltd. and MCL Global Steel (P) Ltd. & Ors. Vs. Soril Infra Resources Ltd. Accordingly, the prayer has been made to dismiss the present petition with heavy costs. 5. Rejoinder has been filed denying all the allegations made in the written statement and stated that the Corporate Debtor has not made the payment of Rs. 12,21,663.65/- and the notice dated 15.03.2018 was manipulated in nature because of the reason that the company was earlier known as "Franco Leone Shoes Private Limited", whereas the name has been changed o....
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....een the Applicant and the Respondent, then sending of notice of dispute qua defect in articles to Mr. Vivek Goel is just manipulative and after thought action on the part of the Corporate Debtor and nothing else. 8. Moreover, the respondent/Corporate Debtor had sent the letter on its letter pad, which bear the subsequent name of company, as the name of "Franco Leone Shoes Private Limited" was changed to "Franco Leone Limited" on 20th March 2018. The letter was anti dated to show that it was sent on 15th March 2018, whereas the same was actually sent on 21.03.2018. Hence, the said letter has been ante dated with intent to show that the same has been sent on 15th March 2018. The same was addressed to Mr. Vivek Goel and not to the company. Even, the letter dated 01st March 2018, was sent to Instyle Overseas LLP, wherein it was stated that "Franco Leone Shoes Private Limited" be read as "Franco Leone Limited" in future and all the correspondence be made in its new name. There is no such receipt placed on record to show that the said letter has been duly sent to Instyle Overseas LLP belonging to Mr. Vivek Goel or to the Applicant herein. 9. Apart from that, it is also worthwhile to me....
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....spute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 11. So far as, the question of sending demand notice by Mr. Abhishek Anand is concerned, it is apparent that there is a email sent on 26.11.2018 by Karin Palmetshofer to Mr. Vivek Goel and copy to Christoph Merkens, whereby Mr. Abhishek Anand, Advocate was authorized to issue demand notice to Franco Leone Limited. Merely, that the General Power of Attorney has been executed in favour of the Mr. Pawan Kumar on 24.01.2019 does not mean that the Mr. Abhishek Anand was never authorized. In this regard, the reliance can also be placed on citation Macquaire Bank Limited (Singapore) (Supra), wherein it is clearly held: "Advocate can act ....