TaxTMI 
TaxTMI 
2023 (5) TMI 1132
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....ion 61 of Insolvency and Bankruptcy Code, 2016 ("IBC" in short) by the Appellant arises out of the Order dated 07.07.2022 (hereinafter referred to as "Impugned Order") passed by the Adjudicating Authority (National Company Law Tribunal, Ahmedabad Court-II) in CP (IB) No. 216/NCLT/AHM/2020. By the Impugned Order, the Adjudicating Authority has dismissed the Section 9 application filed by the Operational Creditor-Shree Durga Iron and Steel Company Ltd. (the present Appellant) seeking initiation of Corporate Insolvency Resolution Process ('CIRP' in short) against Corporate Debtor-Rawalwasia Textile Industries Pvt. Ltd. (the present Respondent). Aggrieved by this impugned order, the present appeal has been preferred by the Operational Creditor.....
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.... not raise any notice of dispute, the Appellant filed the Section 9 application on 28.02.2020 claiming an amount of Rs.2,68,59,749/- as on 15.01.2020 arising out of the decree passed by the Hon'ble Bombay High Court on 14.12.2018. 4. The Learned Counsel for the Appellant stated that the Adjudicating Authority had erroneously dismissed the Section 9 application on the ground that there was a pre-existing dispute between the parties with regard to quality of goods supplied by the Appellant as raised by the Corporate Debtor. 5. Advancing their side of arguments, the Learned Counsel for the Respondent while admitting the HSSA of 24.05.2014, however, vehemently contended that there was a dispute between the two parties which was raised by ....
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....nt for consideration is whether in the facts of the present case, a genuine and real pre-existing dispute can be said to be in existence between the two parties. 7. It is the case of the Appellant that in terms of the HSSA dated 15.09.2014, 4000 MTs of coal had been transferred to the Corporate Debtor by endorsing four BoLs in the name of the Corporate Debtor. It is, therefore, claimed that in terms of the Sale of Goods Act, 1930, and Bills of Lading Act, 1856, the transaction of delivery of goods stood concluded and accordingly, invoices had been raised for the supply of coal on the Corporate Debtor. The delivery of coal consignment is further evidenced from the fact that the Corporate Debtor subsequent to receipt of coal consignment in....
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....Rs.80 lakhs in two tranches on 20.10.2014 and 21.10.2014 post their invoice of 15.09.2014 clearly establishes that coal supplied suffered from inferior quality. The Learned Counsel for the Appellant claimed that the email of 15.10.2014 which has been relied upon by the Adjudicating Authority to hold that there was pre-existing dispute was misconceived since the email vaguely stated that the cargo has been rejected without making any reference to HSSA or the attendant invoice. Moreover, there are no documents which mandated the Operational Creditor to guarantee Sulphur content of 1%. 10. At this stage it may be relevant for us to notice the contents of the said email which is to the following effect : 11. We notice that though the emai....
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..... The Learned Counsel for the Appellant, however, pointed out that the debit notes of Rs.1,52,00,698 issued on 31.01.2015 as amount debited towards 3366 MTs of un-lifted coal was also not accepted by the Hon'ble Bombay High Court in their judgment and decree dated 14.12.2018. However, the Adjudicating Authority has not taken cognizance of the findings of the Hon'ble Bombay High Court. The Learned Counsel for the Appellant, also stated that the Corporate Debtor has taken contradictory grounds for having lifted only 633 MTs of the cargo. While in their email of 15.10.2014, the ground for rejecting the cargo was ascribed to Sulphur content, in a subsequent letter of 31.01.2015 it has been stated that the Operational Creditor had not permitted ....
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....instance of the Operational Creditor. We, therefore, have no hesitation in concurring in the findings recorded by the Adjudicating Authority. 15. We are satisfied that there was sufficient foundation of genuine disputes between the two parties and the same is amply supported by material on the record. It is not the remit of IBC to investigate all related contractual disputes and look into their merits as long as it suffices that a plausible defence has been raised as has been done in the present case. In the present factual matrix, the defence raised by the Corporate Debtor cannot be held to be moonshine, spurious, hypothetical or illusory. 16. Considering the overall facts and circumstance of the present case, and in view of the fore....