TaxTMI 
TaxTMI 
2026 (3) TMI 91
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....petition under Section 9 against the Laxmi Foils Pvt. Ltd. (hereinafter referred to as 'Corporate Debtor' or 'CD'). ii) The Operational Creditor has entered into an agreement with the Respondent, Corporate Debtor on 01.04.2021 in terms of which the Operational Creditor was to introduce the customers to the Corporate Debtor for the sale of latter's material on commission basis. iii) The Corporate Debtor had agreed to pay commission @ 3% on the total invoice value. The Operational Creditor has raised the following invoices against the Corporate Debtor: Invoice No. Date Amount 120 10.01.2022 Rs. 67,34,901/- 121 20.01.2022 Rs. 39,06,297/- 122 28.01.2022 Rs. 28,51,929/- 128 07.02.2022 Rs. 39,33,517/- Total Rs. 1,74,26,644/- iv) As the Corporate Debtor failed to make the payment of amount of Rs. 1,66,88,228/- excluding GST to the Operational Creditor, the Operational Creditor issued demand notice dated 02.08.2022. v) The Operational Creditor had communicated outstanding payment vide email dated 24.02.2022 and 24.04.2022 which were admitted by the Corporate Debtor by issuing letter dated 25.02.2022. ....
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....forementioned Notice has been relied upon by the Operational Creditor himself and has been enclosed as Annexure-8 to the petition. The Operational Creditor has also not placed on record any agreement/ understanding, in terms of which the commission @ 3% on the total invoice value payable to him. Page 29-32 of the Petition are the invoices raised by the Operational Creditor with reference to certain goods supplied at Uttarakhand. In the invoice he has not mentioned even the details of the customers, who were introduced by him to CD. The invoices should essentially contain such details. The Operational Creditor could also not place on record the details of the customers and the manner and circumstances in which he could persuade them to purchase goods from the Corporate Debtor. In para 4 of the reply, the Corporate Debtor could specifically aver that there is no privity of contract in existence between the Corporate Debtor and Operational Creditor and no amount as sought by the Operational Creditor is payable by the Corporate Debtor to the Operational Creditor. Para 4 of the reply reads thus: - "4. Further, the present application has been preferred by the Operational Credit....
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....which it was agreed that they will introduce buyers/customers to the Corporate Debtor for sale-purchase of goods. Pursuant to this oral agreement, the Appellant raised four Invoices for commission @ 3%. iii) It is the submission of the Appellant that raising of Invoices is for reducing the oral agreement between the parties to writing containing essential terms and conditions and thereby a written contract is created, as held in Bharat Forge Ltd. v. Onil Gulati, reported in 121 (2005) DLT357. iv) The Invoices contained the terms, amount and description of parties etc. and form a complete contract. The Corporate Debtor's earlier management had informed the purchasers/new management about the Appellant's outstanding claims. v) The provisional balance sheet of Corporate Debtor was prepared in which the said debt was reflected. The Appellant also commented on the credentials of the Corporate Debtor's present management stating that there are criminal and civil cases against key managerial persons of the new management. vi) The Appellant also filed I.A. No. 332 of 2026 wherein it filed copy of its GST returns in support of its contentions. These GST r....
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....urns of the payments were not placed before the Ld. NCLT and need not be accepted. vii) The Learned Counsel relied upon the following judgments in his support: • Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd. [(2018) 1 SCC 353]; • Transmission Corporation of Andhra Pradesh Ltd. v. Equipment Conductors and Cables Ltd. [(2019) 12 SCC 697]; • K. Kishan v. Vijay Nirman Co. (P) Ltd. [(2018) 17 SCC 662] and • Swiss Ribbons (P) Ltd. v. Union of India [(2019) 4 SCC 17]. viii) The Ld. NCLT has recorded clear findings regarding absence of privity of contract, absence of details of services rendered and the existence of pre- existing dispute and has rightly rejected the application under Section 9 of IBC. 6. We have heard the Ld. Counsels for the Appellant and the Respondent and have perused the records. 7. We note that there was a change in ownership/management of the Corporate Debtor subsequent to MOU dated 25.11.2021 and share purchase agreement dated 03.02.2022. We further note that invoices for services on which commission is sought were raised between the period 10.01.2022 to 07.02.2022 coinciding with....
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....ked for. The Corporate Debtor had claimed that entire alleged dealing is sham, bogus, manipulated and imaginary and that there is no evidence regarding the services rendered. From the correspondence exchanged prior to issue of notice under Section 8, it is clear that there is dispute between the Corporate Debtor and the Operational Creditor regarding truthfulness of Operational Creditor's claim. 9. As per provisions of sub-section 5(ii)(d) of Section 9, application under Section 9 is not admissible where there is a notice of dispute. The Hon'ble Supreme Court in the case of Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd. [(2018) 1 SCC 353] has held as under: 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is p....
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....nding that there was no dispute within the meaning of the IBC." (Emphasis supplied) 11. In the case of Sabarmati Gas Ltd. v. Shah Alloys Ltd., reported in (2023) 3 SCC 229, the Hon'ble Supreme Court has held as under: "56. In the contextual situation it is only apposite to be remindful of the observation in Mobilox Innovations that in doing the act of separating the grain from chaff the Court need not to be satisfied that the defence is likely to succeed. It is enough that a dispute exists between the parties and in other words, what is to be seen is whether there was a plausible contention requiring investigation for the purpose of adjudication. Taking note of the nature of the dispute of the respondent as referred hereinbefore in respect of the claim made by the appellant, we do not find any reason to disagree with the concurrent findings of the Tribunals that there existed a "pre-existing dispute" between the parties before the receipt of demand notice under Section 8 IBC. In other words, the dismissal of the application under Section 9 IBC on the ground of "pre-existing dispute" cannot be held to be patently illegal or perverse. We also do not find any reason, in....