TaxTMI 
TaxTMI 
2026 (2) TMI 742
X X X X Extracts X X X X
X X X X Extracts X X X X
....as in the business of manufacturing LED TVs for which an Agreement was executed dated 19.03.2019. The said C & F came to an end on 02.08.2019 vide email, on the request of the CD as the product of the CD was not selling due to low quality, no brand name and high pricing than its competitors. The said email dated also acknowledged the due amounts payable by the CD i.e. Rs. 215115/- towards expenses/rent etc. and Rs. 21 lakhs security deposit. Consequently, thereafter, the CD lifted all its goods from the godown of the OC through its own logistics. No objection/intimation regarding any damage etc. to the stocks was raised all throughout till the time of filing reply to the notice/s in the instant case. There is also a stipulation at covenant no. 36 of the agreement regarding intimation of any damage etc. to be done within 15 days from receipt of stocks and the account was to be settled within 45 days thereafter. 4. Appellant further contends that the agreement stipulated the following heads, for which the instant Application for Operational Debt has been filed:- "Security: That the C & F agent was to make an initial investment of Rs. 51 lacs as security deposit, which was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nshine. The same should have substance and not be a mere bluster. The Operative part of the judgment is reproduced as under:- "15. This being the factual scenario, we may now note the settled legal position on the issue. In Mobilox Innovations Private Limited v. Kirusa Software Private Limited, (2018) 1 SCC 353, this Court held that the adjudicating authority dealing with an application filed under Section 9 of the IBC is required to determine whether there is an operational debt; whether evidence has been furnished to show that the said debt was due and payable but had not been paid; and whether there was any dispute in existence between the parties or any suit or arbitration was pending in relation to such dispute on the date of receipt of the demand notice of the unpaid operational debt. It was further observed that it would be important to separate the grain from the chaff and to reject a spurious defence which was mere bluster and that, while doing so, the Court did not need to be satisfied that the defence was even likely to succeed. It was clarified that, at that stage, the Court would not examine the merits of the dispute in toto and as long as the dispute truly ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in Punjab for the product at the time, which security amount was dutifully paid by the OC. Thereafter, never has the CD ever called for the alleged due amount, which also proves the fact that the same is also an afterthought to add in order to support the alibi of a pre-existing dispute. Accordingly, it is submitted that the said alibi of a pre-existing dispute is only a move by the CD to raise a hypothetical, unbased and unsupported story of the existence of a pre-existing dispute. The CD has categorically admitted the said amounts being due and payable by them vide email dated 02.08.2019. 7. With respect to the issue of maintainability the Appellant claims that the instant application is maintainable as the amounts claimed are 'Operational debt' as per laws laid down by various Courts/Tribunals as the Commission for the business transacted during the currency of C & F to the tune of Rs. 2,22,221/- is due till the filing of application as also the rent to the tune of Rs. 3,30,300/- is due till filing of application. Furthermore, rent has been held by the Hon'ble National Company Law Appellate Tribunal, New Delhi to be an 'operational debt' as defined in the Code at Section 5(21....
X X X X Extracts X X X X
X X X X Extracts X X X X
....well along with 1.5% commission in every month on surety amount of Rs. 21.00,000/- (Rupees Twenty One Lacs Only). Because of all these steps, the company faced a huge loss in the area assigned to you. 8. That alter having so many email, telephonic calls and reminders. you, the addressee not improve the business for my client, for which my client has suffered a huge loss and having no option at last my client terminated your C & F agency in September 2019. 9. That after termination of the C & F agency you, the addressee returned the goods/articles of my client and when the same were returned to my client and after inspection it was discovered that the goods were badly handled and due to which they got damaged. Hence, my client suffered a huge loss and sent a notice / information regarding the damaged condition of the goods to you. the addressee vide courier dated 11.10.2019, and also informed to you, the addressee that the responsibility of the damaged goods/ articles is of you, the addressee. 10. That after receiving the said notice/ information, you, the addressee, contacted my client and after discussion the account between you, the addressee and my cli....