AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 1696
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....ving defaulted payment of the operational debt of Rs. 17,60,550/- including interest. 2. A perusal of Part-I of the Form-5 reveals that this application is filed by authorized signatory of Operational Creditor, Mr. Suyash Agrawal who has been authorised by an Authority letter/Board Resolution dated 24.07.2019 which is annexed as Annexure-L at page - 143. The Operational Creditor is having CIN No. U10100UP2004PLC029237. The Operational Creditor was incorporated under the Companies Act, 1956 and having registered office at B. 27/63-D-I, 63-E-I, Durgakund, Varanasi, UP - 221005. 3. On perusal of Part-II of the Form-5, it reveals that the Corporate Debtor is one Gujarat Ambuja Exports Limited having CIN: L15140GJ1991PLC016151. The Corporate Debtor was incorporated on 21.08.1991 and having registered office at Ambuja Tower, Opp. Sindhu Bhavan, Sindhu Bhavan Road, Bodakdev, P.O. Thaltej, Ahmedabad, Gujarat - 380059. 4. On perusal of Part-III of the Form-5 it reveals that applicant has not named any IRP under section 13 (1)(c) of the Code to act as Interim Resolution Professional (IRP). 5. On perusal of Part-IV of the Form-5 it reveals that total operational debt as claimed by....
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....ate Debtor has also assured regarding outstanding amount through mail dated 21.06.2018. Copy of email communication for recovery of outstanding dues are annexed with the Petition as Annexure-G Colly at page-113 to 118. 11. Corporate Debtor has never raised any dispute or objection qua the goods supplied by Operational Creditor and even after utilization of goods and till issue of Demand Notice under Section 8 of IBC. 12. A Demand Notice Form-3 came to be issued on 31.07.2019 to the Corporate Debtor which along-with postal receipt dated 21.08.2019 as well as Tracking report of delivery are annexed with the Petition as Annexure-H & I & J at page119 to 132. In response to the said Demand Notice, Corporate Debtor has issued reply cum notice of dispute dated 04.09.2019 which is annexed with the Petition as Annexure-K at page-133 to 142. 13. The Operational Creditor relies upon the following documents. a. The Purchase order dated 08.01.2018 b. Copy of various bills submitted to the Operational Debtor. c. Copy of ledger account, where bill & payment detail shown. d. Copy of computation of outstanding amount in default and interest thereon. ....
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....ing coal from suppliers as it provides clear measure of the useful energy content of a coal. It is comprised of the net calorific value plus the energy contained in the exhaust gases and in the water vapor produced during combustion. 18. FOR indicates that all liability is on seller till the goods reaches the destination of the Buyer and when this term is used quantity received at the Buyer's location shall be treated as final quantity for accounting as well as payment. This term is important in view of the fact that in certain commodities with the passage of time during transit, the quantity is reduced due to evaporation of moisture and other content and hence this term is used to indicate that weight at the location of Buyer shall be considered as final for the purpose of accounting and payment. 19. This term and its value indicated in purchase order indicates the quality of material and it is linked to price agreed upon. If the Coal is supplied with less calorific value then agreed, it will increase the consumption of the coal and it will lead to higher cost to the purchaser. Pricing of the coal is linked to calorific value of the coal and hence if coal of inferior qua....
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.... b) Copy of unaudited provisional results declared by the corporate debtor upto 30.09.2020 at annexure -C c) Copy of email dated 28.05.2019 at annexure- D d) Copy of such debit notes at Annexure-E e) Copy of working computing sheet for relevant period at Annexure -F f) Copy of ledged account maintained by the Corporate Debtor at Annexure-G g) Copy of lab reports indicating quality of the supply at Annexure-H h) Copy of purchase order is attached at Annexure -I i) Copy of letters of payment issued to the applicant is attached at Annexure-J j) Copy of balance confirmation letter and response thereof is attached at Annexure-K (Colly.) k) Copy of table depicting the manipulation for reference at Annexure-L 27. In response to the reply of the Corporate Debtor in rebuttal no Rejoinder was filed by the Operational Creditor despite opportunities given to it. 28. However, 11.10.2023 during the course of hearing Ld. Counsel for the Corporate Debtor again reiterated that as per the purchase order dated 08.01.2018, one of the terms and conditions was of quality parameters and deductions towards inferi....
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....ous date of hearing denied to have received any such email/report from the Corporate Debtor side. the Operational Creditor undertake to place on record the affidavit along with source code of the server to demonstrate the e-mail was actually delivered on the recipient (Operational Creditor herein) E-mail ID. 30. However, in compliance of the order dated 22.11.2023 and direction given vide order dated 11.10.2023 to prove the delivery of e-mail dated 22.02.2018 which is denied by the Operational Creditor, Corporate Debtor has filed affidavit on 04.12.2023 vide inward diary No. 4848 along with source code of the server to demonstrate the e-mail was actually delivered on the recipient i.e. Operational Creditor. 31. In compliance of the order dated 11.10.2023, Operational Creditor has filed affidavit dated 18.11.2023 vide inward diary No. 5167 annexing the list of bills/invoices which are outstanding and they are in total number of 7 showing total balance amount of Rs.14,31,342.30/- pending against the Purchase Order No. 4500181423 dated 08.01.2018 which is as under:- 32. In response to the affidavit dated 18.11.2023, Corporate Debtor has filed counter affidavit on 02.02.2024 v....
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....inst supplied 2022.170 Metric Tons (MT) of Steam Coal. c. The goods sold or supplied by the Operational Creditor to the Corporate Debtor were duly received. d. The Corporate Debtor paid total an amount of Rs. 1,34,49,732750ps. in tranches till 18.04.2018 against totalling amount of Rs. 1,49,28,670.15 ps. against Purchase Order No. 4500181423 dated 08.01.2018 and did not pay balance amount of Rs. 14,31,342/-. e. A Demand Notice was issued on 31.07.2019 by the Operational Creditor to the Corporate Debtor which was replied by the Corporate Debtor vide reply dated 04.09.2019 in which one of the dispute of law quality of coal was raised in terms of Note- 1. GCV less than 5000 K. Cal/Kg. will be deducted proportionately as contains in Purchase order No. 4500181423/001 dated 08.01.2018. f. Further, the Corporate Debtor categorically averred in para 3.5 of reply to demand notice which is reproduced hereunder:- " 3.5 My client states that as per books of accounts of my client towards the demand notice for invoices from 10.01.2018 - 24.02.2018, you supplied coal of an amount Rs. 1,47,60,356.41/- and my client paid you amount of Rs. 1,34,97.327/- a....
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....der No. 4500181423 dated 08.01.2018 in terms of Note- 1. GCV less than 5000 K. Cal/Kg. will be deducted proportionately as contains. 37. The Hon'ble Supreme Court of India, in the matter of 'Mobilox Innovative Private Limited v. Kirusa Software Private Limited, (2018) 1 SCC 353', held as follows: "40. 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 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 ....