2022 (7) TMI 1281

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....hority, (National Company Law Tribunal, Cuttack Bench, Cuttack) in TP No. 100/CTB/2019 arising out of C.P. (IB) No.- 2348/ MB/2018, 'M/s. IFGL Refractories Ltd.' (hereinafter referred to as the 'Financial Creditor'), preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'The Code'). By the Impugned Order, the Learned Adjudicating Authority has rejected the Application, preferred by the 'Operational Creditor', under Section 9 of the Code. 2. Succinctly put, the facts in brief are that the Appellant Company engaged in manufacturing, trading and selling of Refractories items used in Steel Plants. It is averred that pursuant to the Purchase Orders placed by the Respondent Company, the ....

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....he Appellant Counsel that the Ledger Accounts for the period 01.04.2016 to 31.03.2017 maintained by the Respondent Company in the name of the Appellant Company are incorrect. The Learned Counsel placed reliance on the ratio of the Hon'ble Supreme Court in 'Mobilox Innovations Private Limited' Vs. 'Kirusa Software Private Limited', (2018) 1 SCC 353, and also in the case of 'Alluwalia Contract (India) Limited' Vs. 'Raheja Developers Ltd.' decided on 23.07.2019 wherein it was held as follows: "18. From the aforesaid decision, it is clear that the existence of dispute must be pre-existing i.e., it must exist before the receipt of the demand notice or invoice. If it comes to the notice of the Adjudicating Authority that the 'operational....

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..../63035/02 27.12.2016 30,983 V. MR/60428/02 17.01.2017 39,245 VI. MR/63293/02 17.01.2017 78,483 VII. MR/63294/02 17.01.2017 30,983 7. The Learned Counsel for the Respondent Company submitted that seven different Debit Notes were issued to the Appellant Company on account of defective goods, the details of which are as follows: Sl. No. Debit Note No. Date Amount I. ASML/DEBITNOTE/_74_/2016/17 16.11.2016 30,983 II. ASML/DEBITNOTE/_82_/2016/17 27.12.2016 75,509 III. ASML/DEBITNOTE/_83_/2016/17 27.12.2016 30,983 IV. ASML/DEBITNOTE/_84_/2016/17 27.12.2016 19,623 V. ASML/DEBITNOTE/_85_/2016/17 17.01.2017 78,483 VI. ASML/DEBITN....

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....e" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that 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 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....