TaxTMI 
TaxTMI 
2025 (3) TMI 1629
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.... (in short 'agreement') for the sale and supply of energy to the CD (Appellant). The Operational Creditor alleged to have supplied power to the CD from March, 2017 to February, 2021. 3. The Operational Creditors raised invoices for the supply of power on the CD from time to time and the amount of operational debt, in the form of tax invoices was raised by the OC to the tune of Rs. 1,23,31,500/-. 4. The Operational Creditor, before invoking Section 9 of the Code, served a demand notice upon the Appellant, under Section 8 of the Code dated 02.03.2022, in which the following averments have been made:- 5. As per the aforesaid notice, the Respondent claimed Rs. 6,09,49,769/- towards principal Rs. 1,33,00,965/- towards interest and the total amount of Rs. 7,42,50,734/-. 6. Notice was replied by the Appellant on 16.03.2022 in which the Appellant specifically alleged that there is a pre-existing dispute between the parties and referred to a letter dated 21.04.2021 which was attached as Annexure A5. The precise averment made in the reply regarding pre-existing dispute is as under:- p. Further, BCIL vide its letter dated 21.04.2021 addressed to VEPL stated that without a....
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....dated 21.04.2021 is a false and fabricated document created by the Corporate Debtor as an afterthought to create an illusion of a pre-existing dispute between the parties. The Operational Creditor further submits that, the said letter dated 21.04.2021 was never delivered by the Corporate Debtor to the Operational Creditor and the same was brought into picture by the Corporate Debtor for the first time only vide its reply to the Demand Notice. Moreover, the Corporate Debtor has failed to attach the proof of delivery of the above said letter dated 21.04.2021. It is also noted that, the Corporate Debtor has admitted the liability to the Operational Creditor vide email dated 27.05.2021 (same has been referred at Para 4 of this order). Therefore, the Corporate Debtor cannot rely on the dispute raised vide letter dated 21.01.2021 after admitting the liability. Accordingly, this contention of the Corporate Debtor cannot be sustained." 11. In order to challenge the aforesaid findings recorded in para 7 of the impugned order, Counsel for the appellant has referred to the letter dated 21.04.2021 in which the Appellant has raised the issue / dispute that the Respondent has not issued the c....
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....perational Creditor has raised three invoices on the Corporate Debtor for the supply of power between 03.01.2020 and 03.03.2021 which is in the following manner: S. No. Date Invoice Invoice amount (Rs.) Amount received (Rs.) Balance due (Rs.) Interest (SE MCLR +29 up to date receipt Total amount due (Rs.) C + D 1 03.01.2020 68,40,000 39,78,184 28,61,816 549644 3411460 2 02.02.2020 65,55,000 65,55,000 1117628 7672628 3. 03.03.2021 29,14,684 29,14,684 217583 31,32,267 Total 17,00,38,500 1,23,31,500 18,84,855 1,42,16,355 As per these invoices the Corporate Debtor was liable to pay Rs. 1,42,16,355/-, which includes the interest amounting to Rs. 18,84,855/-. There is no doubt that the invoice dated 03.03.2021 raised by the Applicant for a sum of Rs. 29,14,684/- falls under the ambit of Section 10A of the Code but then too, if the said amount along with its interest of Rs. 2,17,583/- is reduced, the amount in default will still be Rs. 1,10,84,088/-. Therefore, such contention cannot sustain. For inclusion of interest to arrive at the Operational De....
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....ate Bank of India medium term lending rate calculated for the period from the payment due date and date of actual payment of the invoices. It is submitted that the penalty amount cannot be equated with interest because there is no such provision in the Code that the penalty can be charged as interest from the other side to cross the threshold. 15. It is further argued by the Appellant that the Respondent has not come to the court with clean hands. In this regard, he has relied upon a decision of the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (Dead) by LRS. Vs. Jagannath (Dead) by LRS & Ors., (1994) 1 SCC that the Appellant had invoked Section 11(6) of the Arbitration and Conciliation Act, 1996 before the High Court of Karnataka for appointment of Arbitrator in respect of same agreement. Notice in that application was issued by the High Court which was received by the Respondent on 01.06.2022 but by concealing this fact, the application under Section 9 was filed on 07.06.2022. 16. On the other hand, Counsel for the Respondent has argued that, in so far as, the letter dated 21.04.2021 is concerned, the same has never been delivered to the Respondent but at th....
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.... mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, ^1[if any, or] record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the ^2[payment] of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 2[payment] of the operational debt in respect of which the default has occurred." 20. As per Section 8, an operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debt or copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. The manner is provided in the Rules and Regulations. Once the....
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....e 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 pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 24. In such circumstances, we have come to the conclusion that since the delivery of the l....
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....rporate Debtor was liable to pay the contracted rate for the contracted quantity of energy i.e., 3 Million units per year. The energy supplied over and above the contracted quantity, the Corporate Debtor was liable to pay the average rate per unit as per the Indian Energy Exchange (IEX). As per this agreement, the Corporate Debtor prepared a statement of account which depicts that an excess amount of Rs.4,46,12,934/- has been charged by the alleged Operational Creditor which represents the amount of the energy charges on the excess supply over and above the contracted units of 3 Million units per year. The Corporate Debtor also requested the alleged Operational Creditor to issue credit notes for the said amount of Rs.4,46,12,934/- in terms of the Agreement, which the alleged Operational Creditor has failed to do till date. Therefore, the Corporate Debtor raised a dispute in April, 2021 itself, however, the alleged Operational Creditor failed to address the same and has filed the present frivolous Application. Copy of the statement showing the year-wise details of the excess amount levied by the alleged Operational Creditor is annexed herewith and marked as ANNEXURE-4 and Copy of....