TaxTMI 
TaxTMI 
2023 (12) TMI 1499
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....nfrastructure support capability services. The Operational Debtor engaged Operational Creditor for works related to 50MW Wind Power Project at Sadala, Gujarat Project which was awarded to OD. The Operational Debtor issued various purchase work orders. The operational creditor raised various invoices from time to time regarding products supplied and works undertaken and completed installation work in time till May 2019. The operational debtor has not made complete payment but only made part payments towards discharging its outstanding liability. Despite issuing various emails, the outstanding amount against the invoices raised was to the tune of Rs. 25,72,70,275/- only along with interest at the rate of 24% per annum from the date of default. The operational debtor never raised any issue with respect to the work done. The operational debtor acknowledged joint measurement depicting completion of work but only sought time to make payment due. Statement of accounts maintained by the operational creditor shows receipt of only part payments from Corporate Debtor. Till date entire payment is not made. 3. The operational creditor issued demand notice dated 02.07.2019. By its reply dated....
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.... debtor is claimed by the operational creditor through other companies. 6. It is further stated that there were pre-existing disputes for numerous reasons which were communicated to operational creditor from time to time. As per the MoU, Operational Creditor was to conclude entire project of 100 locations by December 2016. The operational creditor failed to conclude and complete the work within the given time frame. Some projects were partly concluded. He has submitted chart showing pending work by Operational Creditor. Due to delay in work progress the Corporate Debtor has faced liquidated damages and other additional expenses in compliance of newly enforced GST. Majority of the payments was made by the Corporate Debtor to the vendors of operational creditor as the operational creditor failed to make their payments. The operational creditor has not provided supporting documents demanded after raising invoices. The invoices are for payment made to third parties for acquiring right of pathway, transfer of ownership etc. which cannot be paid without supporting documents. The Corporate Debtor is not liable for this payment as the invoices were rejected prior to issuance of demand n....
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....tion" and submitted that the reconciliation in the email dated 22nd November is insignificant as the invoices were accepted and the Corporate Debtor in its statement of claim filed before arbitrator between Corporate Debtor and SGVNL summarises the reasons for delay. The Corporate Debtor also admitted the completion of work. It has not pointed out discrepancies as alleged in email. The costs ask were extraneous. These are not qualifying defenses. He has further pointed that the Corporate Debtor in its reply rejected certain invoices amounting to Rs. 3,60,71,169/- only. 11. Learned Advocate for the applicant further submitted that in the reply to demand notice the Corporate Debtor has not referred any existing dispute. He has further submitted that the date of default is not required to be mentioned in the notice under Section 8 of the IBC and delayed payment will not amount to default. He has relied upon: Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd. (2018) 1SCC 353 para 34 wherein it held that: "The adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an "operational debt" as....
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.... petition starts from 20.07.2018 to 14.05.2019. While the 365 days to turn the invoice as "default" will be from 20.07.2019 till 14.05.2019 respectively. However, the demand notice is dated 02.07.2019 that is before default occurred. As there was no default on the date of demand notice, the date is not mentioned in the petition. He further submitted that the demand notice issued was for 5 work orders while there were 10 work orders in the invoices. On some of the invoices wrong date of work order was mentioned. He has pointed out that the Operational Creditor himself argued that the Corporate Debtor had returned invoices due to discrepancies. Thus, the reconciliation of invoices of the Operational Creditor are still pending. 15. The Corporate Debtor relied upon: Sabarmati Gas Limited V/s. Shah Alloys Limited MANU/SC/0008/2023 wherein it is held 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....
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....erational Creditor, the application under Section 9 of Insolvency and Bankruptcy Code, 2016 are proceedings and has not a suit. Therefore, the provisions of Partnership Act will not be applicable and the petition is maintainable. Apart from this, the Operational Creditor also filed a document regarding registration of their partnership firm by filing IA No. 1244 of 2023. Therefore, the contention of Corporate Debtor that the petition is not maintainable holds no water. 18. According to Corporate Debtor, there is pre-existing dispute. The Corporate Debtor invoked arbitration proceedings on 04.02.2020 the demand notice was issued on 02.07.2019 while this petition is filed on 21.10.2021. The Operational Creditor also appeared before arbitrator and filed its counter claim and arbitration proceedings are still pending. According to the operational creditor as the arbitration notice was issued after the demand notice so it cannot be said to be a pre-existing dispute. To find out whether there is pre-existing dispute, it is necessary to look into the communications between the parties. The applicant filed various work orders and tax invoices along with the application while the respond....