TaxTMI 
TaxTMI 
2023 (6) TMI 329
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....ht 'delay of 28 days', in finalising and filing the rectified 'Appeal'. As such, the same is liable to be 'condoned', because of the fact that the 'Petitioner / Appellant', has shown a 'sufficient cause', for the delay in preferring the 'Appeal'. 2. This 'Tribunal', on being subjectively satisfied as to the reason ascribed, on behalf of the 'Petitioner / Appellant' that, because of its inadvertence, the delay in question has occurred, by taking a lenient and liberal view, 'condones', the 'delay of 28 days', in filing the instant 'Appeal', in the interest of justice and 'allows', the IA No. 1106 / 2022 in Comp. App (AT) (CH) (INS.) No. 436 / 2022. No costs. JUDGMENT (Physical Mode) Comp. App (AT) (CH) (INS.) No. 436 / 2022: 3. On being dissatisfied with the 'impugned order' dated 25.05.2022, in CP(IB) No. 49 / BB / 2021 (filed by 'Appellant / Petitioner / Operational Creditor'), passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Bengaluru Bench), the Appellant / Petitioner / Operational Creditor, had focused the instant Comp. App (AT) (CH) (INS.) No. 436 of 2022, before this 'Tribunal', as an 'Aggrieved Person'. 4. Earlier, the 'Adjudicating A....
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....btor." and ultimately dismissed the Petition, by making an observation that this Order, shall not 'preclude the Appellant / Petitioner, from availing any other remedy, in accordance with Law, for the redressal of grievances against the 'Respondent', and further any observations made herein above, shall not have any bearing on such proceedings, if initiated, by the 'Appellant / Petitioner'. Appellant's Contentions : 5. The Learned Practising Company Secretary for the 'Appellant / Petitioner / Operational Creditor' submits that the 'Adjudicating Authority' ('National Company Law Tribunal', Bengaluru Bench), while passing the 'impugned order' dated 25.05.2022, in CP(IB) No. 49 / BB / 2021, has misdirected itself by holding that any dispute raised, could be a valid defence, rejecting the 'Application'. 6. According to the Appellant, the 'Adjudicating Authority' / 'Tribunal', had failed to appreciate that on raising an Invoice, is not a precondition, in all cases, for 'admission' of a 'Section 9 Petition', under the I & B Code, 2016. Also that, the 'Adjudicating Authority' / 'Tribunal', had not considered that a 'Dispute', in the sense, shall be a real dispute, and not that ....
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....otal Advance Payment', required was $3,17,880/- (Rs.2,28,62,374.63/-), and further that the 'Payment shall be made within 60 days', from the 'Date of Invoice', and will submit 'Invoice', to the 'Customer', upon 'Shipment of Products'. Also, it was well agreed, in the terms, that in the event of 'Rescheduling' / 'Cancelling' of 'Purchase Order', by customer, resulting in excess inventory, customer acknowledges and accepts full material liability. 12. The Learned Counsel for the Appellant, by adverting to Point 4 of the Terms and Conditions, provided in the Purchase Order, specifically states that 'Delivery shall be as per manually agreed timelines between Vanu and SFO'. 13. The Learned Counsel for the Appellant points out that no 'Email' or 'Reply', to the 'Legal Notice' dated 05.11.2019 or 'Demand Notice' , issued under Section 8 of the Code, dated 15.10.2020, was raised by the 'Respondent', claiming any 'Dispute' or 'Objection', to the 'Liability', on the part of the 'Respondent'. 14. It is represented on behalf of the Appellant that the Respondent through Email dated 04.02.2020, had very clearly admitted the Liability, in regard to the procurement made by the Appellant /....
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....o be gone into by the 'Adjudicating Authority', in dealing with the 'Application', preferred by the 'Operational Creditor'. 60. No wonder, if a 'Debt Sum', of 'more than Rs.1 Lakh' is 'Admitted', an 'Application', under Section 9 of the I & B Code, 2016, is to be 'Admitted', by an 'Adjudicating Authority', 61. Needless to point out by this 'Tribunal', that if the 'Debt Sum' is 'more than Rs. 1 Lakh' (now it is 'Rs. 1 Crore'), then, an 'Application' under Section 9 of the I & B Code, 2016, is not to be 'Rejected', by an 'Adjudicating Authority'. 62. In the present case, there is no material brought on record on the side of the 'Appellant', to exhibit, the 'Existence' of a 'Preexisting 'Dispute', in regard to the 'Interest'. In fact, the 'Memorandum of Compromise', dated 30.04.2019 is a document, filed in support of the Section 9 'Application', before the 'Adjudicating Authority', by the '1st Respondent / Operational Creditor', to establish an 'Acknowledgement of Debt', by the 'Appellant / Corporate Debtor." 18. Furthermore, it is projected on the side of ....
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.... Creditor', the payment by the 'Respondent' / 'Corporate Debtor', to the 'Operational Creditor', towards the material procured by the Operational Creditor, pursuant to the 'Purchase Order' dated 25.09.2018, was placed by the 'Corporate Debtor', on the 'Operational Creditor', bearing No. Vanu / 2018-19 / 007, and the Outstanding Sum after 'Reconciliation', was communicated through email dated 12.02.2020. 24. The 'Debt' according to the 'Appellant / Petitioner / Operational Creditor', was due from 25.09.2018 (being the 'Default Date'), i.e. 'the Date of Purchase Order', as the 'Corporate Debtor', ought to have made 'Payment of Advance Amount', simultaneously with the placing of the 'Purchase Order', on the 'Operational Creditor', and it failed to do so. 25. The Learned Counsel for the Appellant, points out that the 'Operational Debt', is due as per Section 3 of the I & B Code, 2016, 'Sale of Goods Act, 1930', 'Indian Contract Act, 1872', and 'General Provisions of Contract Law', pertaining to payment, in the ordinary course of 'Commercial Transactions'. 26. The Respondent / Corporate Debtor in its objections, to main CP(IB) No. 49 / BB / 2021, before the 'Adjudicating Author....
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....(calculated at the prevailing Exchange Rate of one USD = INR 72.00/-). 30. The stand taken by the Respondent / Corporate Debtor, before the 'Adjudicating Authority', was that, the 'Appellant / Operational Creditor', had not raised any 'Dispute', to the 'Respondent's Purchase Order', and therefore, accepted the 'NRE Charges', would constitute only a part of the 'Total Purchase Order Amount', and therefore, the 'Appellant / Operational Creditor', was not permitted to demand a Sum of INR 228,62,374.63/-, as 'Payable', towards 'Advance', which is clearly in contravention to the 'Terms' of the Respondent's 'Purchase Order', and the 'Operational Creditor's Quotation', and this proves a 'Serious Discrepancy and Disconnect', between the Parties and demonstrates a 'Dispute', as to the Amount(s) due. 31. According to the Respondent / Corporate Debtor, the 'Dispute' existed was demonstrated, without any doubt, from the 'Notice' of 'Claim' dated 05.11.2019, issued by the 'Appellant / Operational Creditor', to the 'Respondent' / Corporate Debtor, by way of an Email dated 07.11.2019, which makes a 'demand' of USD 8,02,883.53, on the 'Respondent'. On receipt of the Respondent / Corporate De....