TaxTMI 
TaxTMI 
2022 (8) TMI 765
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.... in C.P No. (IB) - 1377 (ND)/2019 as challenged in the present appeal and admit the application filed by the appellant under Section 9 of the Code etc. 2. The Adjudicating Authority, while passing the impugned order dated 30.09.2019 has observed the followings: "12. After hearing submissions of both the parties, this Bench is of the view, that the Debit Notes (Dated 31.03.2015 and 31.05.2015) annexed by the Respondent are pertaining to the period, prior to the issuance of the Demand Notice (dated 19.11.2018). 13. Therefore, evidently, there exists a pre-existing dispute. That the contention of the Petitioner that the documents placed on record by the Respondent are forged, raises a civil dispute, which requires further investigation as such disputes cannot be resolved by this Tribunal in summary proceedings, as they will require adducing of further evidence and cross-examination of the parties. 14. Further, the Hon'ble Supreme Court of India in Mobilox Innovations Pvt. Ltd Vs. Kirusa Software Pvt. Ltd. has observed that: "it is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjud....
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.... 11 invoices is Rs. 3,85,90,422/- out of which the unpaid amount is Rs. 3,15,39,380/-. c) Ld. Sr. Counsel for the Appellant has stated that demand notice dated 19.11.2018 was issued under Section 8 of the Code and the reply was sent by the Respondent on 30.11.2018 purportedly raising a dispute. The Appellant is also stated that the Respondent alongwith reply has produced three fabricated and manufactured Debit Notes dated 31.03.2015, 31.05.2015 and 12.04.2016 and the same are appearing at Annexure A-7 of the Appeal paper book. A photocopy of the C-Forms was also produced by a sister concern of the Appellant Company. (Annexure A-8 of the Appeal paper book). d) In the written submission, the claim of Rs. 6,23,80,831/- inclusive of interest has been made which is as per the page 13 of the Appeal paper book. e) Learned Sr. Counsel for the Appellant has also stated that there is no dispute regarding the quality of goods with all these outstanding, the relationship between the parties ended in May 2015. The Appellant itself raised that the CD/Respondent has raised the issue of Debit Notes on account of rate difference or short supply. The CD/Respondent has prod....
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....at the Appellant alongwith its sister concerns, collectively, was obligated to supply a total of 2350 MT of Aluminum Ingot. The debit notes raised against the sister concerns formed part of the record before the Adjudicating Authority. h) It was also submitted even though written submission received in this Tribunal vide Diary No. 31527 dated 31.05.2022 that the Respondent placed on record a chart showing the calculation of quantity goods supplied to it by the Appellant and its sister concerns in the Financial Year 2014-15 and 2015-16, alongwith its reply to the Section 9 of the Petition. As per this chart the total supplies of the Respondent made by the Appellant and its sister concerns in the Financial Year 2014-15 are 13.99.225 MT and for the year 2015-16 total supplies are 353.784 MT. Curiously, the debit notes on account of short supply have only been raised for the year 2015-16, and none for 2014-15 despite similar or higher comparative shortages. i) In view of the above, the Ld. Sr. counsel for the Appellant is seeking to set aside the impugned order dated 30.09.2019, passed by the Adjudicating Authority in C.P No. (IB) - 1377 (ND)/2019 as challenged in the....
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....t as per the Respondent, constitute a dispute between the parties which requires adjudication. In light of the existence of the said very dispute the petition was filed by the appellant has been rightly rejected by the Adjudicating Authority. c. The Ld. Sr. Counsel has also stated that the Adjudicating Authority in exercise of its jurisdiction under section 9 of the Insolvency and Bankruptcy Code, 2016 is not obligated to undertake a detailed fact-finding mission in order to assess whether or not a certain document, stamp or seal is forged. In fact, it is pertinent to note that question with respect to forgery are within the domain of the civil court and cannot be the subject matter of the summary jurisdiction exercised by the Adjudicating Authority. This Appellate Tribunal in Global Infonet Distribution Vs. Tespa Infotech Company Appeal (AT) (Ins) No. 185 of 2019 held as follows: "Learned Counsel for the Appellant submits that the records which were submitted by the Respondent before the Adjudicating Authority were fictitious. Therefore, such document could not have been relied upon to come to a conclusion that there is no debt payable. However, such dispute coul....
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.... is pertinent to note that at no point after did the Appellant ever share the accounts between the parties. The logical inference of this is that the debit notes stood accepted by the Appellant. On 26.12.2015, the Appellant once again issue an email to the Respondent, this time requesting for C Forms. However, in this email there isn't even a bare averment of any outstanding liability. If the case of the Appellant is true and correct, at this point the entire outstanding amount was due for around 12 months. And if any email was being sent, a solitary mention of this outstanding amount would be well within prudent business practice. The failure to even mention the outstanding amount gives rise to the inference that debit notes were indeed delivered and accepted by the Respondent. e. It is also submitted by the Ld Sr. Counsel for the Respondent that the sole reason the Appellant never made any demand for the outstanding amount prior to the issuance of the Section 8 of the 'Code' demand notice in December 2018, despite being in constant communication by way of email. Was that after the debit note dated 12.04.2016 came into existence there was no debt in existence. 5. W....
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....ustment in release of payments is generally done through Debits Notes or Discounts. g. It is also not in dispute that since May, 2015, there has been no purchase of any material from the Operational Creditor. h. There is some dispute with respect to supply of Form-C. Even the Operational Creditor claims for not getting Form-C resulted into additional tax and penalty is not backed by challan. i. It is also not in dispute that the Demand notice has been replied by CD through its counsel's letter dated 30.11.2018 wherein multiple issues have been raised by the Respondent/CD where the CD/Respondent is not only disputing the dues even the issue of Form-C, the issue of business practice, the business relationship keeping silence for dues from 2016 onwards and issue on demand notice for chasing of payment which is not legally due and payable. j. All this reflects that the parties are in multiple litigation and hence the Operational creditor in order to bring pressure on the CD has adopted the provisions of the Code to get disputed payment realized from the CD. The provisions of the Code cannot be used for chasing of payment and moreover where there is a....
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....nly if there is no notice of dispute has been received by the Operational Creditor as per Section 9(5)(d) of the Code. For brevity and clarity, the same is depicted below: "The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (1) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no [payment] of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any." l. In view of the aforesaid facts and circumstances of the case and the law laid down on the subject, we are constrained to uphold the view of the Adjudicating Authority. Accordingly, the Appeal deserves to be dismissed and is ....