2018 (6) TMI 1610 - Tri - Insolvency and Bankruptcy

Maintainability of petition - admission of petition under Section 9 of the IBC 2016 - debit notes pertain to the High Sea Sale Agreement entered into between the Operational Creditor and the Corporate Debtor - HELD THAT - It s the responsibility of the Corporate Debtor to pay the customs duty clearing charges etc. and the Operational Creditor is not liable to pay them and hence the debit notes cannot be taken into account for the purpose of IBC 2016. In case there is a dispute regarding the supplies the relevant court of jurisdiction is the Court of Indore only. These issues were agitated before this Tribunal at the time of admitting the petition under Section 9 of the IBC 2016. The orders of the Tribunal were also upheld by Hon ble NCLAT and the appeal against the order of Hon ble NCLAT was also dismissed by the Hon ble Supreme Court. In view of this the Tribunal reiterates the earlier order. Application disposed off.

Summary

Issues involved:
Interpretation of debit notes for customs duty payment in a running account, validity of High Sea Sale Agreement clause, responsibility for customs duty payment, jurisdiction for dispute resolution, consideration of debit notes in Insolvency and Bankruptcy Code (IBC) claims.

Analysis:
The judgment by the National Company Law Tribunal, Chennai, involved a case where the Corporate Debtor had debited customs duty paid by them to clear coal to the Operational Creditor in a running account. The Chartered Accountants' certificate confirmed this, but it was clarified that the certificate did not validate the debit notes issued by the Corporate Debtor. This distinction was crucial in determining the validity of the debit notes concerning the IBC, 2016.

Regarding the High Sea Sale Agreement between the Operational Creditor and the Corporate Debtor, a specific clause stated that the Corporate Debtor was responsible for paying customs duty, clearing charges, etc. This clause absolved the Operational Creditor from any liability for these payments, making it clear that the debit notes could not be considered for IBC purposes. Additionally, the agreement specified the Court of Indore as the relevant jurisdiction for any disputes related to supplies, adding a layer of legal clarity to the case.

The Tribunal highlighted that these issues were previously addressed during the admission of the petition under Section 9 of the IBC, 2016. The orders of the Tribunal were upheld by the Hon'ble NCLAT, and even an appeal to the Hon'ble Supreme Court was dismissed. Therefore, the Tribunal reaffirmed its earlier decision, emphasizing the importance of consistency and legal precedent in such matters.

Conclusively, the judgment ruled that the debit notes related to customs duty payment should not be considered by the Resolution Professional (RP) while scrutinizing the claims of the Operational Creditor, specifically M/S. Agarwal Coal Corporation Private Limited. As a result, the Application MA No.125 of 2018 in CP No.616/1B/CB/2017 was disposed of based on the detailed legal analysis and precedent set forth in the judgment.