TaxTMI 
TaxTMI 
2022 (7) TMI 1279
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....r'). 2. The Respondent Company M/s. Gaurik Fashions Private Limited having CRN: U52609DL2017PTC315030 incorporated under the provisions of the provisions of the Companies Act, 2013 having its registered office situated at H-34, BK Dutt Colony Lodhi Road, NDMC Delhi, South Delhi, New Delhi - 110003. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. The brief facts of the case leading to the filing of this application as averred by the applicant are as follows: a. The applicant submits that it is an established leading Franchisee for premier international fresh brands in India. The applicant and the respondent corporate debtor had entered into 2(two) terms sheets both dated 02.09.2017 wherein the respondent corporate debtor will act as a "Sub Franchise" for stores located in Elante Mall, Chandigarh and Pavilion Mall, Ludhiana respectively. b. The applicant....
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....to 3(three) parts:- i. Rs. 41,85,221/- towards the secondary sale. ii. Rs. 17,13,326/- towards the outstanding rentals (including CAM, AHU, Electricity) of Elante store which was paid by the applicant and supposed to be reimbursed by the respondent corporate debtor. iii. Rs. 1,30,50,339/- towards the billing value of stocks lying with the respondent as on December 31, 2019. b) Rs. 16,81,111/- towards the Pavilion Mall located at Ludhiana is pertaining towards the secondary sale. f. Further, the applicant submits that the respondent corporate debtor is liable to pay interest amounting Rs. 79,88,730/- calculated @ 18% p.a. from the date of last payment (i.e., interest payable from June 30, 2018 to 28th February, 2021). g. The applicant submits that despite numerous emails sent to the respondent corporate debtor requesting to share the copy of the ledger account maintained by the respondent corporate debtor for reconciliation. The applicant states that when no concrete steps were taken by the respondent corporate debtor to reconcile the accounts and make the outstanding payment to the applicant, consequently, the applicant had serv....
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.... a. The respondent corporate debtor submits that the applicant is relying upon the purported invoices issued by the applicant to the respondent corporate debtor, as per which the respondent corporate debtor is liable to pay a consolidated amount of Rs. 2,06,29,997/- along with interest pertaining to both the leased store. The respondent corporate debtor further state that after closure of all three stores (DLF Saket, Elante, Pavilion) including the above mentioned two stores, the parties exchanged their respective working(s) with regard to amounts payable/receivable. b. The respondent corporate debtor submits that vide e-mail dated August 23, 2019, a detailed account statement was sent by the respondent corporate debtor to the applicant pointing out that the applicant owes a sum of Rs. 1,39,26,600/- only not the sum of Rs. 2,06,29,997/- as claimed by the applicant. The respondent corporate debtor had placed the relevant e-mail correspondence exchanged between the applicant and respondent corporate debtor regarding reconciling and settling the accounts. c. The respondent corporate debtor submits that the respondent corporate debtor had sent replies dated Dec....
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....f. The respondent corporate debtor submits that 18% interest amount claimed by the applicant is arbitrary as the rate of interest has nowhere been specified in the invoice nor in the Term Sheet. Therefore, the purported amount of interest claimed cannot be treated as an operational debt and the amount of debt as claimed under the present Application under reply is wrong and erroneous. g. The respondent corporate debtor further submits that the demand notice dated 30 January, 2020 is invalid and not in terms of IB Code as at the time of sending the said purported Demand Notice, no authorization was enclosed which authorised any director on behalf of the Operational Creditor to have further appointed or authorised the said counsel to send the said Demand Notice. h. The respondent corporate debtor submits that the requirement under Section 9(3)(c) of the IB Code has not been met and neither the applicant has enclosed any e-mail/letter asking the financial institution in seeking the said certificate as required under section 9(3)(c) of the IB Code. i. The respondent corporate debtor have provided with the following documents on record to prove its contentions....
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....he respondent corporate debtor has conveniently left unexplained. d. The applicant submit that the respondent corporate debtor in its reply dated 17.02.2020 to the Demand Notice dated 30.01.2020 issued by the applicant under Section 8 of the Insolvency and Bankruptcy Code, neither states nor gives any records of the existence of and/or pendency of any suit or arbitration proceedings filed before the receipt of the Demand Notice. e. The applicant submits that the respondent corporate debtor has failed to abide by the terms of the Term Sheet executed between the parties with respect to supply of goods and services. Therefore, the applicant submits that the said debt falls within the ambit of operational debt and the respondent corporate debtor is liable to pay the outstanding amount towards the secondary sales, rentals, billing value of stock lying with the applicant and capital assets. 6. We have heard Ld. Counsel for both the parties and perused the averments made in the application, reply and rejoinder filed by the parties. The relevant documents annexed with the respective submissions have been examined. 7. With regard to the quantum of operational debt, w....
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....ng jurisdiction to reject the Application by the Adjudicating Authority as is referred to in sub-section (5) of Section 9. The statute uses the expression 'existence of a dispute'. The word 'dispute' has been defined in Black's Law Dictionary as in the following manner:- "Dispute. A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a relation to which jurors are called and witnesses examined. See Cause of action; Controversy; Justiciable controversy; Labour dispute. 11. In the case of "Mobilox Innovative Private Limited vs. Kirusa Software Private Limited" in civil appeal number 9405 of 2017 ( [2017] ibclaw.in 01 SC) the Hon'ble Supreme Court vide order dated 21.09.2017 has held that: "Therefore, all the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the....
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....ence between the operational creditor and the corporate debtor regarding the performance of the parties in compliance of the term sheets:- Email dated July 12, 2019 addressed by the Corporate Debtor to the Operational Creditor Subject: Re: Ludhiana store issues Hi Jaymin, Thanks for considering our request of closing the store, ideally this should have happened way back looking at the scenario that Major brand hasn't been supplying stock for the last 8 months. It's clearly evident that MB is not bothered about the partner. We have been suffering looses due to non supply of stock but rather than supporting the partner MB is bothered about their money only. Just to update you till now nothing from Saket store has been released to us despite we trusting MB and sending the stock back to you. We were committed that civil payment (part of it, which is given by DLF to MB) would be returned to us. Looking at the current scenario I don't think we can trust MB since we fulfilled all our commitment but MB didn't fulfill even once since day 1. Please let us know about our deposits and other payment of Saket, in the meanwhile....