TaxTMI 
TaxTMI 
2022 (9) TMI 859
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.... Adjudicating Authority (National Company Law Tribunal, Mumbai Bench), in CP (IB) No.- 4428/NCLT/MB/2018, whereby the Ld. Adjudicating Authority has dismissed the Section 9 Application under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "The Code") preferred by Operational Creditor-M/s. Sarda Argo Oils Limited-the Appellant herein preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as 'The Code'). 2. While dismissing the Application, the Adjudicating Authority has observed as follows: "8. On perusal of the documents submitted by the parties and in the facts and circumstances of the present case, this Bench is of the view that, it would be relevant to ref....
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....undisputed that the claim amount is advance paid by the Applicant to the 'Corporate Debtor' for goods which were never supplied. In this regard it would be appropriate to note the decision of the Hon'ble National Company Law Appellate Tribunal in "Roma Infrastructures India Pvt. Ltd. Vs. A.S. Iron & Steel (I) Pvt. Ltd. in Company Appeal (AT) Ins. No. 223 of 2019 dated 22.04.2019", wherein it is held that since money was paid as advance for supply of goods but the goods were not supplied, hence the Application under Section 9 was not maintainable. The relevant portion of the said Judgement is reproduced below: "Admittedly, Appellant-Roma Infrastructure India pvt. Ltd. has not supplied the goods nor provided any services to Responden....
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....Debtor' in connivance with NCS and others unlawfully sold the balance to a third party. It is submitted that out of total amount due, the 'Corporate Debtor' paid only Rs. 1,14,31,778/-on 16.03.2015 and the balance was still pending. The total amount payable by the 'Corporate Debtor' as per books of account of the Appellant is Rs. 10,89,13,983/-. Accordingly, the Appellant raised nine Debit Notes against the 'Corporate Debtor' for non-delivery, excess amount collected, etc. The last Debit Note was raised on 28.05.2015 for demurrage of USD 51472-Vessel. It is contended that the said dispute of demurrage ultimately led to the breaking of ties between the parties. On 13.11.2015, a Legal Notice was issued on behalf of the Appellant demanding Rs.....
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...., we address to the issue as to whether the Application is within the limitation period. Learned Counsel for the Appellant placed reliance on invoice dated 05.02.2015 which is reproduced hereunder: 8. It is seen from the afore-noted invoice that the Operational Creditor raised an invoice on 05.02.2015 for an amount of Rs. 5,93,06,625/-. It is contended that out of their total amount due, the 'Corporate Debtor' paid only Rs. 1,14,31,778/ on 16.03.2015. It is not in dispute that a Legal Notice dated 13.11.2015 was issued and a Demand Notice under Section 8 of the Code was issued on 04.04.2018 and subsequently the Section 9 Application was filed on 26.11.2018. Even if we do not take into consideration the disputed Debit Note dated 28.05.201....
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.... wherein the Hon'ble Apex Court has observed as follows: "40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" 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 invest....