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TaxTMI 
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2022 (10) TMI 812
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....HARI, MEMBER (TECHNICAL) Preamble: The Present Appeal is filed against the Order dated 07th April, 2021 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench) in Company Petition (IB) No. 2854(ND)/2019, whereby the Adjudicating Authority has dismissed the Application filed by the Appellant under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'I&B Code'). Brief Facts: Appellant's Submissions: 2. The Learned Counsel appearing for the Appellant submitted that the Appellant is aggrieved by the impugned order dated 07.04.2021 for the reason that the Learned Adjudicating Authority without appreciating the facts that there is a prima-facie admission by the Respondent its liability to p....
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....17, 21.06.2017 and 31.08.2017 issued to the demand notice of the Appellant were all sham false and bogus and the same were sent as an afterthought by the Respondent in order to avoid its liability. 5. In view of the reasons as stated above the Learned Counsel prayed this Bench to allow the appeal by setting aside the impugned order. Respondent's Submissions: 6. The Learned Counsel appearing for the Respondent submitted that there is pre-existing dispute between the Appellant and the Respondent since the year 2016, which was demonstrated by letters dated 18.04.2017, 30.05.2017 and 08.08.2017 sent by the Appellant to the Respondent. The Respondent replied to the above letters of the Appellant vide dated 21.06.2017 and 31.08.2017. Fur....
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....5 entered between the Appellant and the Respondent for supply of footwear under the brand name of SLAZENGER. The Appellant raised invoices on the Corporate Debtor for supply of goods. 10. The Adjudicating Authority having considered the application on merit observed a para 30 of the order as under: "30. On the basis of aforesaid discussions, we are of the considered view that the documents filed by the Petitioner along with its application and documents filed by the corporate debtor along with its reply establishes that there is a pre-existing dispute between the parties prior to the issuance of demand notice and that is the reason for which the applicant proposed the name of the arbitrator and expressed its intention to refer t....
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....ity rightly dismissed the application on the ground of pre-existing dispute. 13. To buttress their arguments the Respondents issued legal notice dated 23.03.2017 to the Directors of the Appellant Company stating that the Appellant Company committed fraud and cheated the Respondent. It is stated that the parties have entered into an agreement on 01.07.2015 for supply of footwear products under the brand name SLAZENGER to the Respondent. It is stated that the Appellant represented the Respondent that they are engaged in the business of manufacturing and distributing of equipment, apparel and shoes under the brand name SLAZENGER and is authorised licensee of the said brand. However, the Respondent come to know that the Appellant is not auth....
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....the Appellant and the Respondent. 15. The Appellant vide its reply dated 18.04.2017 to the legal notice of the Respondents dated 23.03.2017 admitted the fact that there are some disputes between the group company under which the appellant obtained licence for supply of SLAZENGER. Thus, it is an admitted fact that the Appellant does not hold the licence and entered the agreement subsequent to termination of licence / agreement dated 19.01.2015. 16. Further, there are several correspondences namely the Appellant vide its letter dated 08.08.2017 suggested appointment of arbitrator, however the respondent vide its reply dated 31.08.2017 categorically stated that the void agreement is not enforceable, therefore, the appointment of arbitrat....
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.... ICICI Bank & Anr. reported in (2018) 1 SCC 407 at para 29 held as under: "29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing - i.e. before such notice or invoice was received by the corporate d....