JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, J.

The Appellant preferred application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (‘I&B Code’ for short) for initiation of the ‘Corporate Insolvency Resolution Process’ against the Respondent-‘Arcotech Limited’-(‘Corporate Debtor’). The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh, dismissed the appeal there being a notice of dispute raised by the Respondent and on account of defect as detailed in the impugned judgment.

2. The matter was initially heard by this Appellate Tribunal and by order dated 31st July, 2017, this Appellate Tribunal dismissed the appeal on some other ground. This Appellate Tribunal held that foreign Bank of which ‘record of default’ has been produced is not recognised in terms of provisions of the ‘I&B Code’ and the Bank having no office in India nor any account with any of the Bank or ‘Financial Institution’ do not come within the meaning of ‘Financial Institution’. Such judgment was delivered on the basis of a decision of this Appellate Tribunal in “Macquarie Bank Limited Vs. Uttam Galva Metallics Limited-Company Appeal (AT) (Insolvency) No. 96 of 2017” decided on 17th July, 2017.

3. The aforesaid judgment in “Macquarie Bank Limited (Supra)” was reversed by the Hon’ble Supreme Court on the basis of decision in “Macquarie Bank Ltd. vs. Shilpi Cable Technologies Ltd.” reported in AIR 2018 SC 498.

4. The Appellant also challenged the earlier judgment of this Appellate Tribunal dated 31st July, 2017 before the Hon’ble Supreme Court in Civil Appeal No. 23504 of 2017. The Hon’ble Supreme Court by its judgment dated 16th May, 2018, set aside the order dated 31st July, 2017, in view of the findings in “Macquarie Bank Ltd. vs. Shilpi Cable Technologies Ltd.” and remitted the matter to this Appellate Tribunal for deciding the appeal on merit.

5. Learned counsel appearing on behalf of the Appellant submitted that there was no pre-existence of dispute and, therefore, the Adjudicating Authority wrongly rejected application preferred by the Appellant under Section 9 of the ‘I&B Code’.

6. It was submitted that by reply dated 28th March, 2017, the ‘Corporate Debtor’ for the first time raised dispute relating to delivery of goods in question when admittedly the goods have been delivered to the ‘Corporate Debtor’ one year ago which the ‘Corporate Debtor’ received without any demur or protest.

7. On the other hand, according to learned counsel for the ‘Corporate Debtor’, there is pre-existence of dispute as evident from the enclosures attached with the record.

8. From the record, we find that the parties reached agreement with regard to supply of hot mill with electrical panel and switch cabinets, part of which were dispatched on 27th June, 2016. In reply to Appellant claims, much prior to promulgation of the ‘I&B Code’, one Mr. Amit Sharma on behalf of the ‘Corporate Debtor’ by e-mail dated 27th June, 2016 thereby asked the Appellant not to dispatch the goods for the reasons mentioned therein, which reads as follows:

9. From the aforesaid e-mail dated 27th June, 2016, it is clear that the ‘Corporate Debtor’ intimated the Appellant that the Appellant has provided the ‘advance payment guarantee from Hermes’ instead of a ‘commercial Bank’ which is not acceptable as per the Reserve Bank of India Regulations. In this background, the ‘Corporate Debtor’ returned the original guarantee to the Appellant-(‘Operational Creditor’) with a request to furnish the guarantee from a commercial Bank. The Appellant was informed that the ‘Corporate Debtor’ has apprised Mr. Wilbers about all these issues and, therefore, the ‘Corporate Debtor’ was asked for two months’ extension to make the payment for hot mill. It was intimated that if there were any issues at end of the Appellant to accede to the demand of the ‘Corporate Debtor’, the same could have been informed to the ‘Corporate Debtor’. It was specifically mentioned that hasty decision to dispatch off