TaxTMI 
TaxTMI 
2022 (7) TMI 242
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....as 'Adjudicating Authority') in CP(IB)No.1393/MB-IV/2020. By the said order the Adjudicating Authority acting upon petition filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as the 'IBC') has initiated Corporate Insolvency Resolution Process (CIRP) and appointed Interim Resolution Professional namely Mr. UVG Nayak by M/s Global Advertisers, a Sole Proprietary Firm-Operational Creditor. 2. The Operational Creditor on the basis of outstanding dues had issued Notice under Section 8 of the IBC against Respondent No.1. As allegedly since no tangible dispute was raised by the Respondent No.1 an application under Section 9 of IBC was filed and thereafter impugned order was passed. 3. One of the Member of the suspended Board of Directors and a shareholder of Sai Estate Consultants Chembur Pvt Ltd, Corporate Debtor, has filed the present Appeal. Initially in the Appeal the IRP was not arrayed as Respondent. On 18.08.2021, a Coordinate Bench of this Tribunal directed for impleading IRP as Respondent, besides issuing necessary directions. The order dated 18.08.2021 is quoted hereinbelow: "Heard Learned Sr. Counsel for the Appellant ....
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....c. 7. Respondents on service to file Reply-Affidavits within two weeks. Rejoinder, if any, may be filed within a week, thereafter. Parties to file brief 'Written-Submissions' not more than three pages along with 'Copies of Judgments' they want to refer or rely on, within three weeks. 8. List the Appeal 'For Admission (After Notice)' Hearing on 07th October, 2021." 4. In the Appeal filed before this Tribunal which was numbered as Company Appeal (AT)(Insolvency) No.616/2021, the Appellant besides making prayer for setting aside of the impugned order dated 2nd August, 2021 also prayed for stay of operation of the impugned order during the pendency of the Appeal. Since while issuing notice and directing to implead IRP as 2nd Respondent no 'Stay order' was passed by the Coordinate Bench' of this Tribunal. The Appellant preferred an Appeal before the Hon'ble Supreme Court which was number as Civil Appeal No.4967/2021. The Hon'ble Supreme Court vide its order dated 31st August, 2021 disposed off the Civil Appeal primarily observing for passing suitable orders on 'Stay Application' of the Appellant. It is better to reproduce the order dated 31st August, 2021 passed in ....
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.... us, to avoid any ambiguity, we also make it clear that the parties through their respective counsel shall stand at notice to appear before the Appellate Tribunal on 23.05.2022. The interim arrangement, as indicated above, shall continue until final disposal of the appeal. We would also request the Appellate Tribunal to assign a reasonable priority to the appeal for expeditious consideration." 6. Thereafter the present Appeal was listed on 26.05.2022. Since there was paucity of time the Appeal could not be taken up and was directed to listed on 30th May, 2022 on which date after hearing Learned Counsel for the parties, the 'Order' was 'Reserved'. 7. The case of the Appellant is in its Memo of Appeal has been described as follows:- "7.1 The Respondent carries on the business of display of advertisements on hoardings within the area of Mumbai, Thane and rest of Maharashtra for several years. 7.2 Since the inception of the Respondent's commercial relationship with the Corporate Debtor, on account of a close friendship between the Respondent's representative Mr. Vicky Gupta and the Corporate Debtor's representative Mr. Amit Wadhwani i.e. the Appellant a....
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....t 1.5 years after the alleged provision of services. 7.5 The Respondent also sought to rely upon certain tabulated statements in the Petition an impression is sought to be created as if the same were part of the invoices/ written confirmation. That was not the case. The said statements were not provided with the invoices / written confirmations and most of them do not even co-relate to the invoices. There is / are no tabulated statements in support of some of the invoices / written confirmations. There is no acceptance shown of the details shown in the tabulated statements. Some of the tabulated statements do not even bear the acknowledgement of receipt by the Corporate Debtor and may not have been provided to it prior of the filing of the Petition. 7.6 In fact, pursuant to the receipt of some of the tabulated statements at different / random points in time, the Corporate Debtor vide correspondence issued by it in February and March 2020 (i.e. much prior to the issuance of Section 8 Notice in June 2020) sought reconciliation of accounts and verification of material evidencing the actual provision of services, the specifications thereof, locations, etc. and listed ....
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....blication of advertisements so as to show that they are internally adding and growing their business. It could be that overenthusiastic employees of the Respondent may proceed and publish / put up advertisements to meet their internal targets within the Respondent's organization. That, however, cannot lead to the Corporate Debtor paying for advertisements which it had not permitted; not given a go ahead or in respect of which either invoices were never raised or sufficient proof has not been furnished of actual publication/ putting up on hoardings as per agreed specifications and at agreed locations. For all these reasons the Corporate Debtor had raised issues disputing debt, quality of service so provided and even breach of fundamental obligations and sought a reconciliation/ verification exercise by specifying the details / documents required much prior to the issuance of the Section 8 notice. 7.11 The Respondent had however sought to avoid the reconciliation / verification exercise and instead sought to invoke the provisions of the Code in a mala fide attempt to coerce the Corporate Debtor to make payments to the Respondent, which are not due to it and avoid the verific....
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....n. They were not returned on any assurance of payment to RTGS.. Ordinarily, in day to day commercial activities, no creditor would return postdated cheques if amounts were due to it. The return would only happen once payment has been received through other modes. The Corporate Debtor had (in pleadings) pointed this out as a crucial instance of falsehood which the Respondent had indulged in whilst justifying its false claim. 7.14 The fact that an account reconciliation had been demanded and discrepancies had been pointed out was apparent from the fact that in response to the Respondent's wrongful letters dated 2nd August 2019 and 8th February 2020, the Corporate Debtor vide its Reply dated 20th February 2020 clearly stated that there were no supporting documents provided for the bills raised and the supporting documents were pending even in respect of the on account of payment of Rs.1.25 Crores. It was in this letter, reiterated that the Corporate Debtor through its representatives Mr. Amit Wadhwani and the Respondent's representative Mr. Vicky Gupta always had an understanding that money would only be payable by the Corporate Debtor when it was able to do so. Integral to t....
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....n a "payable when able" basis. The understanding of payable when able is intrinsically linked with a need to reconcile accounts and records. This is simply because one ought not to pay for services being provided by the Respondent unless one is able to reconcile the monetary demands made in respect of thereof with the proof of services provide. It is for this reason that an ad-hoc payment was only made on an account basis and the balance was to be made post reconciliation of accounts and verification of supporting information/ documents. 7.19 It is in the aforesaid background that the Application was filed on 28th July, 2020. A copy of the Application filed before the Ld. National Company Law Tribunal, Mumbai Bench is annexed hereto and marked as Annexure "C". 7.20 The Corporate Debtor filed its Affidavit in Reply dated 6th July 2021. A perusal of the Affidavit in Reply demonstrates that the following was the broad stand taken: (i) since the understanding between the parties was that the Corporate Debtor would make payments on a "payable when able" basis which meant that liability accrued upon completion of a reconciliation of accounts and verifi....
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.... fails to appreciate the Corporate Debtor's contentions and renders findings contrary to the record and shockingly, disregards the binding judicial precedents of the Hon'ble Bombay High Court that were placed before the NCLT. The impugned Order gravely prejudices the Appellant and the Corporate Debtor since it has admitted the Section 9 Petition and appointed an IRP over the Corporate Debtor. 8. In the present case initially the IRP after receipt of the Notice has submitted 'Status Report dated 6th September, 2021 wherein he described as to what steps he had taken after the order dated 2nd August, 2021 passed under Section of the IBC by the Adjudicating Authority. The Respondent No.1/Operational Creditor has also filed detailed reply dealing with averments made in the Memo of Appeal. The Respondent in its reply has stated as under:- "1. The present reply is being filed by M/s Global Advertisers through its proprietor Mr. Sanjiv Gupta (hereinafter referred to -as the "Original Petitioner" for the convenience of this Hon'ble Appellate Tribunal) for the purpose of opposing the present Appeal as well as Interlocutory Application No. 1649 of 2021 filed by the Appellant s....
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....s taken up by the Corporate Debtor for the first time in a letter dated the 20th of February 2020, which was sent in response to reminder letters dated the 2nd of August, 2019, and the 5th of February 2020, sent by the Original Petitioner seeking payment towards the outstanding invoices. As was set out in the said petition, the unpaid invoices raised by the Original Petitioner were issued between the 28th of February 2018, and the 29th of June, 2019. There was no correspondence between the parties during this time, or even after the invoices were sent, suggesting that the modus operandi agreed to between the parties was that the invoices would be on "payable when able" basis. It is only after almost a year of following up by the Original Petitioner that the Corporate Debtor asserted that the arrangement between the parties was on a "payable when able" basis. 5. At any rate, even assuming that such was the arrangement between the parties, the interpretation which is now sought to be put on the phrase "payable when able" by the Appellant is clearly facetious and erroneous. As per its literal interpretation, the phrase "payable when able" suggest that the Corporate D....
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....the Corporate Debtor. These detailed charts were prepared jointly by the parties, which is clear from the fact that they were countersigned by both of them. Thus, the Corporate Debtor was, at all points of time, fully aware of the extent of the services being provided by the Original Petitioner. In fact, the locations and durations of the advertisements put up by the Original Petitioner on behalf of the Corporate Debtor were as specifically agreed beforehand, as is clear from a perusal of the documents on record. The Appellant seeks to contend that the invoices had no correlation with the written confirmation letters, which is demonstrated false upon a bare perusal of the invoices and the confirmation letters themselves. Even otherwise, it is important to note that each of the invoices stipulates that any objections to their contents ought to be taken within a period of 7 days of the receipt. Admittedly, the Corporate Debtor has never raised any objections to any of the invoices. It is certainly a moonshine defence to seek to cast doubt upon the invoices years after they are raised and only after receiving notices for payment. The Appellant has admitted that the Corporate Debtor ha....
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....ices were not rendered or that the services were insufficient or defective; instead, an assertion is made that a reconciliation of a counsel is required before the Corporate Debtor could make payments. There is no positive assertion from the side of the Corporate Debtor that no payment is required to be made to the Original Petitioner. Similarly, there is no assertion that services were not rendered to the Corporate Debtor. In fact, neither the Corporate Debtor nor the Appellant have anywhere in their pleadings stipulated what is the position of the accounts between the parties. The Corporate Debtor never produced its own ledger account before the Adjudicating Authority, and neither has the Appellant in the memorandum of appeal. Neither the Corporate Debtor nor the Appellant have stated how much according to them is due and payable to the Original Petitioner. It is submitted that merely seeking reconciliation of accounts without putting forward any actual "dispute" cannot amount to a pre-existing dispute as understood under the provisions of the IBC. 11. The falsity in the case of the Appellant is further clear from the fact that the Original Petitioner agreed to meet with....
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..... 13. With respect to paragraph 7.8 of the memorandum of appeal, the Original Petitioner denies the contents therein as they are false and misleading. As has already been set out above, the Corporate Debtor had acknowledged receipt of the confirmation letters, the details of the services provided, the tabulation charts of the same, as well as the invoices. It is also pertinent to note that despite having received the invoices which are now claimed to be incomplete, the Corporate Debtor remained silent for more than 18 months and did not raise any allegation that the services were not actually rendered. In fact, even today it is not the case of either the Corporate Debtor or the Appellant that services were not rendered by the Original Petitioner. Rather, the Corporate Debtor seeks to avoid making payment on the frivolous ground that it wants to review all of the correspondence and documents relating to the amounts sought without raising any concrete dispute about the same. 14. With respect to paragraphs 7.9 and 7.10 of the memorandum of *appeal, the Original Petitioner denies the contents therein as they are false and misleading. The Appellant is seeking to raise ....
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....s therein as they are false and misleading. As has been set out in the said petition, the post-dated cheques were returned to the Corporate Debtor at its request. It is pertinent to note that the Appellant has himself stated that he as well as other promoters/directors of the Corporate Debtor shared cordial relations with the Original Petitioner. It is certainly not inconceivable that the Original Petitioner agreed to return the postdated cheques as a result of this cordial relationship on the basis that the dues would be transferred through wire transfer at a subsequent point of time. At any rate, even if what is stated in the paragraph under reply is considered to be true, the same does not absolve the Corporate Debtor of its default to make payment towards the admitted operational debt owed by it to the Original Petitioner. Nothing contained in the paragraph under reply would amount to a pre-existing dispute as understood by the provisions of the IBC. 17. With respect to paragraph 7.13 of the memorandum of appeal, the Original Petitioner denies the contents therein as they are false and misleading. The Appellant has not been able to produce any document corroborating hi....
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.... to take this moonshine and baseless defence (if it all it can be considered as a defence) only after receiving multiple reminders for payment. The Original Petitioner repeats and reiterates what has been set out in the present counter-affidavit in this regard. 20. With respect to paragraph 7.16 of the memorandum of appeal, the contents therein are expressly contrary to the letter of the Corporate Debtor dated the 14th of March, 2020, as is clear from a bare * perusal thereof. Nowhere in the letter dated the 14th of March, 2020, has the Corporate Debtor even mentioned the pandemic or COVID19. The falsity of the contentions of the Appellant are laid bare through the paragraph under reply. 21. With respect to paragraph 7.17 of the memorandum of appeal, the Original Petitioner denies the contents therein as they false and misleading. The assertions of the Appellant in the paragraph under reply are please false in light of the documents on record and what has been stated by the Original Petitioner above. It is clear that the bogeyman of reconciliation was raised by the Corporate Debtor for the sole purpose of delaying and avoiding the payments admittedly due and payab....
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....of the memorandum of appeal, the Original Petitioner denies that any injustice has been caused to the Corporate Debtor or the Appellant as has been alleged or otherwise. The Appellant is merely grasping at straws in order to justify the present appeal. 25. With respect to paragraph 7.24 of the memorandum of appeal, the Original Petitioner denies that the impugned order is liable to be set aside." 9. Shri Ramji Srinivasan, Learned Senior Counsel during the course of hearing has argued that since there was pre-existing dispute, the Learned Adjudicating Authority has incorrectly and illegally passed the impugned order. The Learned Senior Counsel has taken the Court to number of documents brought on record in the present Appeal, which were according to the Learned Senior Counsel for the Appellant were produced before the Adjudicating Authority, vividly shows that there was pre-existing dispute between the parties. He has referred to number of documents which were in existence much prior to issuance of Notice under Section 8 of the IBC by the Operational Creditor/Respondent No.1. According to Learned Counsel for the Appellant if there were pre-existing dispute, there was no ....
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....es being provided, merely on the basis of receiving invoices, it cannot be assumed that the Corporate Debtor was liable to pay the amounts of the invoices and it could not be expected that the Corporate Debtor was to make payment under the invoices, which had not been verified and reconciled in the aforesaid manner. A reconciliation exercise of the nature described above, was absolutely necessary and mandatory. 1.6 It is also pertinent to point out that no such proof is to be found in the Section 8 Notice and/ or in the Section 9 Petition. Even today, the requisite proof has not been placed on record by the Operational Creditor before the Learned NCLT and/ or this Hon'ble Tribunal and/ or the Hon'ble Supreme Court of India. 2. The pre-existing dispute: 2.1 The Section 8 Notice in the present case was issued on 12th June 2020 (pg.149). 2.2 The conduct of the Parties and stand taken in correspondence exchanged prior to 12th June 2020 plainly demonstrates the existence of a pre-existing dispute: (Pg. 174 para-viii) 2.2.1 The Corporate Debtor specifically took the stand in its letter dated 20th February 2020 (Pg.144- 145) that the alleged li....
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.... would be paid." i) From the Operational Creditor's response letter dated 11th March 2020 (pgs.146 and 147), it is most pertinent to note that the Operational Creditor itself agreed to the reconciliation exercise and fixed an appointment on 14th March 2020 for the same. Once the Operational Creditor agreed to the reconciliation exercise, it is inconceivable as to how it could have filed the Section 9 petition, without first completing the reconciliation and verification exercise. Reliance in this regard is placed on the judgement of the Hon'ble High Court of Bombay in the case of Tata Advanced Materials Ltd. v. Tool tech Global Engineering (P) Ltd. (2012) SCC Online Bom 1566 - Paragraphs 12 to 16. 2.2.3 In its letter dated 14th March 2020 (Pg. No. 148-149 of Appeal), the Corporate Debtor specifically took the stand that the Operational Creditor had excessively billed the Corporate Debtor and specifically listed out the documents/ information that was required for the reconciliation / verification exercise (see para 4). Para 4 of this letter is set out hereinbelow for ease of reference: "4. From the aforesaid circumstances it appears that you have excessiv....
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....Debtor in its letters prior to the Section 8 notice. 2.2.8 In any case, it is inconceivable that an OC can seek initiation of the CIRP without placing on record documents to prima facie demonstrate the actual provision of services, especially when a dispute was raised in relation thereto prior to invocation of the provisions of the Code. 2.2.9 It is the pleaded case of the Corporate Debtor (see para 5 of Reply @Pg. 168- 177) that given the nature of the advertisement services, reconciliation of accounts and more particularly verification of documentary materials evidencing the actual provision of services was a prerequisite prior to making of payments. This was also necessitated in view of the fact that the invoices were vague and devoid of basic particulars (see para 5 (iii) of Reply @ Pg. 169-170). The Operational Creditor chose not to file a rejoinder. None of these contentions are denied. 2.3 Case Law: ii) Mobilox Innovations Private Limited v Kirusa Software Private Limited (2018) 1 SCC 353 - Paragraph 51 - (Pg. No. 222 Vol-II) "40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwi....
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....ous invoices (which are not the subject matter of the Section 9 petition filed by the Operational Creditor). 2.5.2 Secondly, in the Affidavit in Reply (para 5 (xi) / Pg. No. 173) to the Appeal, the Corporate Debtor has specifically stated that this was done because the Operational Creditor had agreed that a reconciliation was to be done and had therefore returned the cheques. There is no denial of this position since no rejoinder has been filed. Moreover, the Corporate Debtor's stand visà-vis the cheques is also contained in paragraph 6 of its letter dated 20th February 2020 (pg.144@145). Hence, this is not a new stand taken for the first time after issuance of the Section 8 Notice. 2.5.3 Thirdly and in any event, it is inconceivable commercial conduct that the Operational Creditor would return post-dated cheques if it truly believed the Corporate Debtor owed its monies. 2.5.4 Hence, on every count, the Corporate Debtor respectfully submits that no case is made out for any admission of liability on the basis of the post-dated cheques and in fact, the conduct of the Parties' is a relevant indicator vis-à-vis these cheques. 3. Reliance on Invo....
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....d for verification (see para 5(iv) at pp. 5-6 of Reply). 3.5 It is in the aforesaid context that this Hon'ble Tribunal must appreciate that pursuant to the receipt of some of the tabulated statements at different / random points in time, the Corporate Debtor vide correspondence issued by it on 20th February, 2020 and 14th March, 2020 (i.e. much prior to the issuance of the Section 8 Notice in June, 2020) sought reconciliation of accounts and verification of material evidencing the actual provision of the services, the specifications thereof, locations, etc. and listed out the specific information and documents that were needed for the same (see para 5(v) at Pg. No. 170 of Appeal). The Petitioner however avoided the same by not providing the specific information/ documents sought and rushed to issue the Section 8 Notice (see para 5(x) at Pg. No. 172 of Appeal). Hence, these tabulated statements are of no consequence / assistance. 3.6 Lastly, the purported work completion reports (Pg. Nos. 116, 126, 130) can in no manner take the Applicant's case any further. This is because: (a) these work completion certificates by themselves do not indicate the value of the servi....
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....Respondent No.1. He submits that in terms of oral agreement entered in between the parties the Operational Creditor has rendered its services by way of fixing Signs Board etc and from time to time submitting working completion report. The Appellant was repeatedly asked to make payment of Rs.2,54,40,604/- Rs.516027/- and overdue interest of Rs.5359186/- plus further interest from August, 2019 to 1st January, 2020 of Rs.2656596/-. Since the payment was not made even vide letter dated 06.02.2020 the Appellant was intimated that if outstanding payment including interest is not paid within a specified time the Respondent No.2 may take appropriate legal action. He further submits that various communications were made to make payments. He further submits that outstanding dues has not been disputed by the Appellant considering the fact that the Operational Creditor received Rs.35 lakhs and there was a shortfall of Rs.95 lakhs. Earlier 20 cheques of Rs.5 lacs each were also issued by the Appellant. However, some of the cheques were dishonoured. According to the Learned Counsel for the Respondent there was no genuine dispute rather outstanding dues were without any dispute but once Operation....
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.....50,00,000/- were honoured and 2 cheques of Rs.5,00,000/- each were dishonoured with the remark FUNDS INSUFFICIENT. And even after dishonour of cheque, no dispute was raised. 06.02.2020 OC raised a demand to clear outstanding dues or legal action would be initiated [Letter dated 02.08.2019 @Page 142-143 of Appeal] 20.02.2020 First time CD after completion of transaction since long back, called upon, for reconciliation of accounts* Here for the first time he says as per the arrangement, CD will pay the amount "PAYABLE WHEN ABLE" which means liability is not disputed. 11.03.2020 OC responded, that the outstanding amount claimed is as per the confirmation letter and all details are with CD but OC in good faith said that the CD can attend on 14.03.2020 for reconciliation of account. [Letter dated 11.03.2020 @ Page 146-147 of Appeal] 14.03.2020 The CD failed to attend the meeting, and asked for his own documents which were already in his possession. [Letter dated 14.03.2020 @Page 178 of Appeal] 12.06.2020 The OC issued Demand Notice forwarding along with the notice, photocopies of all the documents as called for by the CD in their letter date....
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....the assurance of payment and requesting it to make the payment for entire overdue outstanding amount. [@Pg.141of Appeal]. ii. In addition to above, more letters are written by OC to CD asking for payments on 03.08.2019,20.08.20219, 04.09.2019, 30.09.2019. iii. On 06.02.2020, OC issued 6th letter to the CD requesting to make the payment for the entire overdue outstanding amount within 15 days failing which proceedings will be filed before NCLT. [@Pg.142-143 of Appeal] iv. iv. After threat of NCLT filing, it is for the first time i.e. on 20.02.2020, CD responded to all the 6 letters of OC, where at Para 5 it is mentioned by the CD itself that the understanding between the parties was 'PAYABLE WHEN ABLE'. It is further noteworthy that even in this letter of CD no performance issue is raised, no quality issue is raised, no quantity issues is raised, moreover there is no dispute raised with regard to any specific invoice or specific work ofOC. [@Pg. 144-145} NOTE: In law, vague denials cannot be construed as 'dispute', it must be substantive. In other words, there is nothing substantial in this letter, which CD could have met. ....
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....was deducted and deposited on the invoices before issuing cheques. - Issue of reconciliation without anything specific is a 'lame excuse'. At Paragraphs 51-53 - CD has not raised any 'pre-existing dispute even after receipt of the Demand Notice'. 7. RESPONSE TO ARGUMENTS IN APPEAL i. No substantial ground is raised by the Appellant to seek interference. ii. It is a chance litigation, in view of the fact that the RP has verified the claims and found it to be correct. iii. Issue as raised during arguments i.e. the place/time of hoardings are required is a 'bogey' a non-existent issue for various reasons, viz. - Admittedly the confirmation letter issued by the OC, duly acknowledged by the CD for allocating the work. Admittedly all the invoices, including the outstanding invoices were received by the CD in their office by endorsing the acknowledgment. Admittedly no dispute in respect of the display work, display of advertisement, amount claimed in the invoices, were ever raised within 7 days from the receipt of invoices, till filing of the present appeal. Admittedl....
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....s substantial and real. Thus, present appeal must fail with cost." 11. The Learned Counsel for the Respondent has also taken us to some invoices at Page 88 to 94. We have also examined the same and at least in one of the invoice which was shown by the Learned Counsel for the Respondent, which is at Page 94, in the bottom itself an endorsement has been made "Received (not checked)". This indicates that though invoice was raised but unless it was checked it cannot be inferred that the amount of invoice was admitted. 12. Besides hearing the Learned Counsel for the parties, we have minutely perused the materials available on record and after going through the same we are of the opinion that the Corporate Debtor has made out a case that there were pre-existing disputes between the parties. Without going in detail, it can be held that the documents reflect regarding pre-existence of dispute between the parties. As claimed by the Operational Creditor outstanding was lying since the year 2019 and vide letter dated 06.02.2020 issued by the Respondent No.1 addressed to the Appellant, it appears that Respondent No.1 admitted that he had received payment of Rs.35 lakhs till 1st August, 2....
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.... You then called us for a meet again at your office wherein Mr. Sanjiv Gupta, Mr. Amit Gupta, and Mr. Vicky Gupta had come together in Jan 2020 and you promised to release the balance 10 cheques of 5 lacs each which were originally issued towards interest from the Mumbai Dist Central Bank account by the 25th Jan 2020 and requested to send the old cheques back (2 stop payment and 8 undeposited). In good faith we have returned these 10 cheques to you, but till date were have not received these new cheques. You had also promised to pay part principal amount of Rs.50 lacs till Feb 2020 by issuing two cheques of Rs.25 lacs each but nothing has been done on that front till date. We now call upon you to immediately pay us Rs.254,40,604/- plus Rs.5,16,027/- and overdue interest of Rs.53,59,186/- plus further interest from 3rd August, 2019 to 31st Jan 2020 of Rs.27,56,595/- We hereby call upon you to make the entire outstanding payment including the overdue interest within the next 15 days failing which, necessary legal action against you company for realization of the Dues under rules and regulation of NCLT and failure to comply with the requisite containe....
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.... Vicky Gupta and our Mr. Amit B Wadhwani sought to be alleged infact meeting could have occurred between both as they are friend and have cordial relationship, but there was never any discussion in respect of the alleged claims raised by you or the promises for payment as sought to be alleged, infact the claims raised by you need to be reconciled. 5. We deny the contents of the debit note in toto and state that there is no any debt or liability payable by us. In fact we alongwith your Vicky Gupta always had an understanding of "payable when able" because our Amit B Wadhwani and Vicky Gupta shared and presently still share a cordial relationship with each other. This fact is also corroborated in the invoices raised by you as the invoices never mentioned any due date or period by when the given amounts were required to be paid. For this reason also if you are inclined to demand payment, we would have to first reconcile the accounts post which if at all anything is due would be paid. 6. With regards to replacement of cheques and honouring of certain cheques were nothing but payment made due to friendly relationship which our client shared with your client and later i....
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....utstanding Dues submitted by us from time to time. Therefore we failed to understand the grievance regarding non-supporting of documents as alleged by you. 3. In any event, to avoid any controversy, as requested you you we hereby fix an appointment on 14th day of March, 2020 for reconciliation of the accounts and accordingly you are requested to remain present in our office or depute your representative along with the necessary statement of account for reconciliation of the accounts. 4. Please note that if the aforesaid exercise is not done within 7 days from the receipt of this letter, we will be constrained to proceed legally for recovery of outstanding. 5. In view of the above, all the allegations contained in your letter under reference are denied in toto." 15. On perusal of paragraph 3 of letter dated 11th March, 2020 it is evident that date for reconciliation of account was fixed by the Operational Creditor to 14th March, 2020. It goes without saying that since there was no settlement of account in between the parties and there were some disputes, the Respondent No.1 had agreed for fixing a date for reconciliation of the account. This fa....