TaxTMI 
TaxTMI 
2022 (7) TMI 362
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....orporate Debtor). 3. It is submitted in the petition that the Operational Creditor is engaged in the business of Gold Jewellary and the Corporate Debtor is carrying on Advertising Business of Media Newspaper etc. The Corporate Debtor approached the Operational Creditor for supply of Gold Ornaments by placing a Work Order dated 14th May, 2019. A copy of the Work Order is annexed as Annexure-D to the petition. The Operational Creditor supplied New Gold Ornaments weighting to 262.120 Gms as per Work Order for Rs. 8,93,911/- (Rupees Eight Lakhs Ninety Three Thousand Nine Hundred Eleven only) to the Corporate Debtor on 21/05/2019. The Corporate Debtor received the supplied materials after verification as good without any objection regarding the product quality in the supply of materials. During the business, the Operational Creditor has issued Tax Invoice and the material delivered to the Corporate Debtor after verification of the goods by the recipient of the Corporate Debtor. Copy of the Bill and receipt is annexed as Annexure-E. 4. It is further submitted that the Corporate Debtor paid Rs.8,93,911/- on 20/05/2019 through banking instrument dated 20/05/2019 bearing No. 000181 dr....
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....e enclosed as Annexure D & E. ii. Copy of Cheque Return Advice is enclosed as Annexure-F. iii. Copy of Accounting Ledger-Annexure-G. iv. Copy of Bank Statement-Annexure-H. v. Copy of email dated 27/05/2019 & 03/06/2019, from Mr. Rishi Nakhat (Proprietor of Venus Creation) to Corporate Debtor- Annexure-I. vi. Copy of Form-3 and Postal Receipt Annexure-J & K. vii. Copy of Reply receipt from Corporate Debtor Advocate, Annexure- L. 10. On being served with the notice of the court, the Corporate Debtor has filed its reply affidavit. 11. In reply to the petition, the Corporate Debtor filed an affidavit of one of its Directors Bindiya Surana. It is submitted that Mr. Rishi Nakhat, who claimed to be proprietor of the Operational Creditor herein in the affidavit verifying the petition has made false statement and has committed forgery. It is submitted that Corporate Debtor has never received the said consignment of the gold ornament so the question of payment does not arise. 12. It is submitted that the encashment of the alleged security cheque which in turn gave rise to the alleged dispute was done without the knowledge of the ....
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....e alleged cheque have been intentionally done to the wrong ID. The alleged emails have been sent to "[email protected]" whereas the official email id of the Corporate Debtor is [email protected]. The Corporate Debtor has denied the averment of the petition which are contrary to the record. 16. It is denied that the Corporate Debtor approached the Operational Creditor for supply of Gold Ornaments as alleged. Instead, the Work Order was issued on 14.05.2019 on the request of the Operational Creditor. The Operational Creditor never supplied gold articles of any value to the Corporate Debtor on 21/05/2019 or any other date prior thereto or subsequent thereto in pursuance of the Work Order dated 14/05/2019 as alleged. It is submitted that the dishonour of the security cheque, does not give rise to any legal liability or debt in the absence of delivery of Gold articles to the Corporate Debtor. 17. It is submitted that unfortunately the Corporate Debtor handed over the security cheque to the Operational Creditor but no gold was ever delivered to the Corporate Debtor by the Operational Creditor. The Operational Creditor has filed this present application with mala fide inten....
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....or the proper adjudication of the present case and the application under section 9 is liable to be dismissed. 21. During the course of arguments, the Ld. Counsel for the Operational Creditor submitted that there was no dispute as regards the quality of goods or services and that the dispute was raised by the Corporate only after receipt of the Demand Notice. 22. It is submitted by the Ld. Counsel for the Operational that the Hon'ble NCLAT in the case of Kirusa Software Private Limited held that merely raising an illusory dispute in response to a demand notice shall not to use as a tool to reject the application, if the Adjudicating Authority believes that there is a debt and default on the part of the Corporate Debtor. It is pertinent to note that the Adjudicating Authority is empowered and required to verify the bonafide of a dispute if the application for initiation of Corporate Insolvency Resolution Process is filed by a Financial Creditor. However, such is not the situation in the event the dispute relates to an Operational Creditor. In such a scenario the onus to prove the existence of a bonafide dispute shifts from the Operational Creditor to the Corporate Debtor. 23....
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....rate Debtor as per the Track Consignment Report on 23rdJuly,2019. In the reply affidavit, although the Corporate Debtor has denied having received the gold ornaments against which the amount is being claimed by the Operational Creditor but from the plea taken by the Corporate Debtor that the cheque bearing no.000181 dated 20th May, 2019 amounting to Rs. 8,93,911/- drawn on Kotak Mahendra Bank, Synagogue Street Branch, Kolkata was given as a security cheque appears to be improbable. 26. It is stated by the Corporate Debtor that the Operational Creditor had presented the cheque for encashment without intimation to the Corporate Debtor and in support thereof, the Corporate Debtor has referred to some judgment of the Hon'ble Supreme Court of India. 27. The Corporate Debtor has not shown any previous transaction when the Corporate Debtor had issued any cheque to the Operational Creditor as a security which had been encashed by the Operational Creditor later, after delivery of the goods. The Corporate Debtor has also not shown any letter or email written by it. Either at the time of issuing that security cheque or immediately when came to it came to know that the gold ornaments hav....
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....nkruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-....