TaxTMI 
TaxTMI 
2022 (12) TMI 918
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....he Operational Creditor for initiation of Corporate Insolvency Resolution Process ('CIRP' in short) against the Corporate Debtor. Aggrieved by this impugned order the present appeal has been preferred. 2. Making his submissions, the Learned Counsel for the Appellant stated that M/s Shah Paper Mills Limited, Operational Creditor/Appellant had business relationship with M/s Shree Rama Newsprint and Paper Limited, Corporate Debtor/Respondent for supply of packing wrappers. The Corporate Debtor/Respondent issued purchase orders to the Appellant for supply of the goods against which invoices were raised by the Appellant. It was further stated that the Corporate Debtor made payments "on account basis" system on "first in first out" basis. Thus, payments received from the Corporate Debtor was adjusted by the Appellant towards preceding transactions and a running account of the Corporate Debtor was maintained in their book of accounts. 3. On the salient terms and conditions to be followed in respect of their business transactions, it was further submitted that both parties had agreed that in case of goods supplied by the Operational Creditor was rejected by the Corporate Debtor, a debit ....
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....t dated 21.05.2015, all invoices pertaining to the period post-change of the management have been paid in full and that there was no outstanding dues. The Learned Counsel for the Appellant strenuously contended that the Operational Creditor cannot be denied their legitimate dues simply because a new management had taken over the Respondent company. It has been further argued that the new management was liable to clear all the dues including dues for the period prior to the change of management since the new management had taken over the Respondent company with all liabilities. 8. Refuting the submissions made by the Appellant, the Learned Counsel for the Respondent has contended that the present matter is not maintainable since the Appellant at no stage crystalized the actual amount that had become due and that different amounts was claimed at different points of time as the outstanding amount. It has also been claimed that payment for all invoices raised against purchase orders between 25.07.2015 and 28.02.2017 had already been cleared and that an excess payment of Rs.82,141/- had been made by the Corporate Debtor to the Operational Creditor. The Learned Counsel for the Responden....
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.... application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act." 13. Coming to the facts of the present case on whether operational debt being due and payable has remained unpaid or not, we note that the Appellant has contended that the Corporate Debtor on 15.04.2017 has by way of an email communication unequivocally admitted that as per their books of accounts, an amount of Rs.37,33,552.10 is due to the Operational Creditor. This email emanated from one Pankaj Jaiswal, ([email protected]) of Rama Newsprint has been placed at page 33 of APB and it would be useful to reproduce the same: "Dear Sir, As per our books of account balance of your account is Rs.37,33,552.10 cr (Shah Paper Mills Ltd) With Regards, Pankaj Jaiswal Mob.-08238056077" 14. We also find another communication thereafter from the Operational Creditor to the Corporate Debtor dated 27.12.2017 in which the Corporate Debtor has been requeste....
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....ereby the Operational Creditor called upon the Corporate Debtor to pay a sum of Rs.70,76,730/-. The Corporate Debtor replied to the aforesaid letter vide email dated 15.04.2017 pointing out to the Operational Creditor that as per their account statement Rs.37,33,552.10 is only due and payable. The Operational Creditor sent one more letter dated 27.12.2017 giving some calculations calling upon the Corporate Debtor to pay Rs.55,23,253/-." ( Emphasis supplied ) 16. However, the Adjudicating Authority has further held that there was a difference of opinion between the Operational Creditor and the Corporate Debtor on the amount which was due and payable. While the Operational Creditor claimed a sum of Rs.55 lakhs and odd, the Corporate Debtor claimed that the entire due is paid including a sum of Rs.82,141/- paid in excess. The Adjudicating Authority came to this conclusion on the basis of reply filed by the Corporate Debtor to the Section 8 notice. The relevant portion of the impugned order is as under: - "8. It appears from the above evidence on record that there is a dispute even prior to the Demand Notice about the exact amount due and payable by the Corporate Debtor to the Ope....
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....ached certain invoices with your notice dated 28.11.2018 totaling to Rs.70 70 445 whereas as per annexure B the amount indicated is Rs.63 42 321 and thus somehow you have tried to derive figure of Rs.55 23 253 after considering credit invoices of Rs 8 19 068 from the so called figure of Rs 63 42 321. There is no ledger statement attached to substantiate the same. We had requested you to produce any document for reconciliation of account done with the company in the past vide our letter dated 22.6.2017 but instead of producing any document you keep on sending letters after letters demanding payment as stated in your notice dated 28.11.2018. You have been mentioning receipt of our letter dated 22.6.2017 in all your letters but without responding to contents of the said letter dated 22.6.2017. We would like to inform that no amount is payable to you and the amount demanded by you pertains to the period prior to change in management in 21.5.2015 for which no confirmation was forthcoming from you and without prejudice to the same otherwise also the amount demanded is time barred. Thanking you Yours faithfully, P K Mundra President [ Finance ] & Company Secretary" [Emphasis....
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....ear Sir, This is to inform you that our representative Mr. Raj Bhatt visited your office on November 30, 2017 for reconciliation of our account statement. However no one is ready to take up the issue and resolve this matter. The undersigned personally visited Mr. Manoj Khandewal on February 15, 2018 and had a long discussion on this matter to solve the long overdue payments and wrong deductions also. Mr. Manoj Sir informed that as per the management decision, he was ready to release the payments as per your books of accounts i.e. Rs.39,08,005 and the same to be released in monthly installments and balance amount of Rs.16,15,248 is to be write-off by us. I have also contacted Mr. Siddharthji, in mid-March but he denied to look into Rama Newsprint Co. old Account and asked us to contact Mr. Manoj Khandelwal. Our Books of Account shows an amount of Rs. 55,23,253 as receivable which is to be released by you out of which Rs.16,15,248 has been wrongly debited by you towards deduction which is also payable by you. We have been sending several reminders through different methods of communication like e-mails as well as by post. In this regards we have already sent you reminders on ....