Husqvarna Ab (Publ) vs Allianz Mechanisation India Pvt. Ltd
- CitationCompany Appeal (AT) (Insolvency) No. 321 of 2018
Ratio decidendi
The rule this decision rests on
A dispute within the meaning of Section 9 of the I&B Code, for the purpose of rejecting an operational creditor's application, must be shown to exist in respect of the invoices that form the subject of the demand notice under Section 8(1); a dispute concerning other supplies is not a ground for rejection of the application on those invoices. Where the invoices shown in the Section 8(1) demand notice are inconsistent with the invoices shown in Part IV of Form-5, and the operational debtor has raised a dispute in respect of the invoices in the demand notice, the existence of a dispute is made out and the Adjudicating Authority is justified in rejecting the application on that ground. A contention that the existence of a dispute was not raised before the Adjudicating Authority does not bar the appellate forum from considering it where the tribunal has itself decided the matter on the merits after perusing the demand notice and Form-5.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Husqvarna AB (PUBL) ...Appellant
Vs
Allianz Mechanisation India Pvt. Ltd. ....Respondent
Present:
For Appellant: Mr. Amar Dave, Mr. Ajay Bhargava, Mr. Aseem Chaturvedi and Ms. Wamika Trehan, Advocates For Respondent: Mr. Nikhil Nayyar, Mr. Divyanshu Rai and Mr. Naveen Hegde, Advocates.
ORDER
04.10.2018: This appeal has been preferred by Appellant (Operational Creditor) against order dated 27th April, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench whereby the application under Section 9 of the I&B Code preferred by the Appellant was rejected by the Adjudicating Authority on the ground of 'existence of dispute'.
2. Earlier when the matter was taken up, learned counsel for the Appellant submitted that the Adjudicating Authority has rejected the application preferred by the Appellant on wrong ground of existence of dispute as it failed to notice that the said existence of dispute relates to other supplies and not related to the invoices of which demand notice under Section 8(1) of the I&B Code was issued.
3. On notice, Respondent appeared and filed reply affidavit. Learned counsel appearing on behalf of the Respondent referred to demand notice dated 17th July, 2017 issued by the Appellant under Section 8(1) of the I&B Code, relevant portion of which reads as follows:-
-2- Company Appeal (AT) (Insolvency) No. 321 of 2018 -3-
4. On the other hand in the Part IV of Form-5 the total amount of debt shown against a number of invoices is as follows:-
Company Appeal (AT) (Insolvency) No. 321 of 2018 -4-
5. Learned counsel appearing on behalf of the Respondent rightly pointed out that there is a dispute in the invoices shown in the demand notice under Section 8(1) and number of invoices shown in Part IV of Form-5, therefore, the Adjudicating Authority has rightly rejected the claim.
6. We do not accept the submission of the learned counsel for the Appellant that such issue was not made before the Adjudicating Authority, as we have decided the case on merit after perusal of demand notice and Form-5, which are inconsistent as well.
7. We find no merit in this appeal. It is accordingly dismissed.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial) am/gc
Company Appeal (AT) (Insolvency) No. 321 of 2018
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