The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi comprising Judicial Member Justice Ashok Bhushan and Technical Members Dr. Ashok Kumar Mishra and Dr. Alok Srivastava recently held, "we feel that Appellant had to submit unimpeachable proof of delivery of goods to establish his case under section 9 of IBC. Such evidence was also necessary since the respondent had disputed delivery of goods in his reply to the demand notice. Therefore, we are inclined to believe the claim of the Respondent that the goods were actually not delivered at the site."
In the instant case, the Appellant had not been able to show convincingly that it had actually supplied materials relating to Invoice 2 and invoice 3 as claimed. It was true that the Respondent could raise the dispute regarding non-supply for the first time in its reply to the demand notice under section 8 as it did not have knowledge of the said Invoices 2 and 3 before it received the demand notice. These disputes, therefore, relate to the dates of purported invoices and in this sense, they were legitimate disputes and not sham disputes.
The Supreme Court in the matter Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited, REED 2018 SC 10543, has also held that IBC provisions cannot be invoked whenever there is an existence of a real dispute. The Bench quoted, “15. In a recent judgment of this court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, REED 2017 SC 09545, this Court has categorically laid down that IBC is not intended to be a substitute to a recovery forum. It is also laid down that whenever there is the existence of a real dispute, the IBC provisions cannot be invoked.”
In the light of the detailed discussion in the aforementioned paragraphs, the Appellate Authority were of the opinion that the Application under Section 9 filed by the Appellant lacked merit and was correctly rejected by the Adjudicating Authority.
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