TaxTMI 
TaxTMI 
2023 (8) TMI 1710
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...., declaring moratorium and appointing Mr. Debdas Chakraborty as the Interim Resolution Professional (in short 'IRP'). 2. The brief facts of this case are that the Operational Creditor issued a demand notice under Section 8 of the Code on 13.09.2018 to the Corporate Debtor to which no reply was filed and then filed an application under Section 9 of the Code on 25.02.2019 for resolution of an amount of Rs. 27,68,141/- with interest @ 24% as outstanding payment of the whole spices supplied by the Operational Creditor to the Corporate Debtor from time to time. 3. The application was filed by Binod Kumar Choudhary, as a proprietor of Isha Food Products (proprietorship firm) through his son Vikas Kumar Choudhary to whom the power of attorney was given by him on 02.01.2019. It is alleged that though there was no written contract between the parties yet supplies were made on oral instructions of the Corporate Debtor. The application under Section 9 of the Code was filed with various documents including copies of challan cum invoices but there is no reference of particulars of the invoices in Para 8 of the application. 4. Be that as it may, the application filed under Section 9 of ....
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.... Authority has committed a patent error in mis-appreciating the evidence on record about the identity of the Operational Creditor and rejecting the plea of the Appellant that there was a pre-existing dispute between the parties before the proceedings were initiated through demand notice 8. In so far as, the issue regarding identification of the proprietor is concerned, the application under Section 9 of the Code was filed by Binod Kumar Chaudhary as proprietor of M/s Isha Food Products, having its official address as 159 Rabindra Sarani, 12th Floor, Kolkata- 700007. It is argued that the Adjudicating Authority erred in appreciating the letter dated 04.08.2018 which was addressed to M/s Isha Food Products and sent on the same address which has been mentioned in the application filed under Section 9 of the Code. It is further submitted that the letter dated 04.08.2018 was on the subject of supply of spurious products by the Operational Creditor to the Corporate Debtor and in this regard, the dispute was raised by the Corporate Debtor with the Isha Food Products and not a particular person. It is further submitted that the letter dated 04.08.2018 was duly received by the Operationa....
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....owed to blow hot and cold in the same breath. It is further submitted that even for taking a defence to contest the application filed under Section 9 of the Code, issue of pre-existing dispute is not necessarily be bonafide and all that is required is that there should be dispute between the parties and in this regard, he has relied upon a decision of the Hon'ble Supreme Court in the case of Rajratan Babulal Agarwal Vs. Solartex India Pvt. Ltd. & Ors. (2023) 1 SCC 115. He has pressed Paras 73, 74 and 75, which are reproduced as under:- "73. In Mobilox (supra), this Court took the view that one of the objects of the IBC in regard to operational debts is to ensure that the amount of such debts which is usually smaller than the financial debts does not enable the operational creditor to put the corporate debtor into the insolvency resolution process prematurely. It is further declared that it is for this reason that it is enough that a dispute exists between the parties. It is further the law as declared in Mobilox (supra) that Section 5(6) of the IBC excludes the expression bona fide which qualified the words suit or arbitration proceedings in Section 5(4) under the Bankrupt....
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....es which were issued for which amount has been claimed from the Appellant. He has also argued that the Appellant had also filed a Criminal Complaint under Section 418, 420 and 406 of IPC in which there is no reference of invoices and also the letter dated 04.08.2018. It is thus submitted that the defence of the Appellant that there is a pre-existing dispute is imaginary and made-up story which has rightly been not taken into consideration by the Adjudicating Authority. 11. We have heard Counsel for the parties and perused the record with their able assistance. 12. There is no dispute that the application filed under Section 9 is not maintainable until and unless there is a demand notice issued under Section 8 of the Code. The demand notice was issued on 13.09.2018 to which reply was not filed by the Appellant. The application under Section 9 of the Code was filed on 25.02.2019. The Appellant has raised a dispute also about the genuiness of the invoices, inter alia, on the ground that these invoices, namely, Invoice No. IFP/17-18/867, Invoice No. IFP/17-18/888, Invoice No. IFP/18-19/016 and Invoice No. IFP/18-19/027 does not inspire confidence because no document is referred t....