2021 (6) TMI 740 - Tri - Insolvency and Bankruptcy

Maintainbaility of application - initiation of CIRP - Corporate Debtor faield to make repayment of its dues - Operational Creditors or not - existence of debt and dispute or not - HELD THAT - It is the case of the petitioner that in terms of the agreements entered into between the petitioner and the respondent, the respondent guaranteed and warranted that it shall utilize the raw material supplied by the petitioner solely and exclusively for the purpose of manufacture of the products for the petitioner and not for any other purpose. Despite the petitioner having provided with the raw material and technical know-how to the respondent and made repeated requests and reminders, the respondent failed and neglected to supply and deliver the products to the creditor. In July 2017, upon physical verification at the premises of the respondent, the petitioner learnt that the raw materials supplied by it are missing from the site and the respondent has wrongly misused and misappropriated the raw material. The respondent by misusing the raw materials which belonged to the petitioner, is in complete breach and violation of the agreement and has deprived the petitioner of its legitimate rights over the stock of raw material. The respondent with such actions have, therefore, committed willful default of the agreement. The petitioner miserably failed to give a proper calculation/computation of the amount claimed as a debt due from the respondent. The invoices were raised by third party vendors in favour of the petitioner. The petitioner has not raised any invoice against the respondent. In this view of the matter, we are of the considered view that the petitioner failed to establish the relationship of an operational creditor and corporate debtor between the petitioner and respondent and also failed to prove any ascertained and established debt either in respect of any services rendered or goods supplied to the respondent or for any breach of trust or terms of agreements. Hence, the issue is answered in the negative. Petition dismissed.

Issues Involved:
1. Whether the petitioner is the operational creditor of the corporate debtor.
2. Whether there was any debt and default by the corporate debtor.

Detailed Analysis:

Issue 1: Whether the petitioner is the operational creditor of the corporate debtor

The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, by M/s. Sun Pharmaceuticals Industries Ltd. (Operational Creditor) against M/s. Allychem Laboratories Pvt. Ltd. (Corporate Debtor) for initiating Corporate Insolvency Resolution Process (CIRP). The operational creditor claimed that an Exclusive Technology Transfer and Manufacturing Agreement dated 01.03.2010 was executed between the parties, under which the corporate debtor was obligated to use the provided technology and raw materials for manufacturing and supplying products exclusively to the operational creditor.

The corporate debtor allegedly failed to fulfill its obligations by not supplying the intermediate products despite repeated requests, and it was found that raw materials provided by the operational creditor were misappropriated. The operational creditor claimed a total amount of ?4,50,40,493.98 due to the misappropriation, loss, and pilferage of raw materials.

The corporate debtor contended that the relationship was of a Bailor-Bailee nature and not that of an operational creditor and debtor. They argued that there was no operational debt as there was no sale price, sale, or invoice, and each transaction was individual without a running account. They also claimed that the petition was time-barred and that the operational creditor attempted to bypass the law of limitation.

The Tribunal examined the relevant provisions of the Code and the clauses of the Agreement. It found that the petitioner failed to establish the relationship of an operational creditor and corporate debtor. The petitioner did not provide a proper calculation or computation of the claimed amount and failed to prove any ascertained and established debt either for services rendered or goods supplied. The invoices were raised by third-party vendors in favor of the petitioner, and no invoice was raised against the respondent.

Issue 2: Whether there was any debt and default by the corporate debtor

The Tribunal noted that the petitioner claimed the debt fell due on the date when the raw materials were supplied and found short. However, the petitioner did not provide sufficient evidence or documentation to substantiate the claimed amount. The Tribunal concluded that the petitioner failed to prove any default by the corporate debtor in terms of ascertained and established debt.

Conclusion:

In view of the findings, the Tribunal dismissed the petition CP (IB) No. 173/Chd/CHD/2018, stating that the petitioner failed to establish the relationship of an operational creditor and corporate debtor and did not prove any ascertained and established debt. Consequently, there was no necessity to delve into other issues raised by either side.

Final Judgment:
The petition CP (IB) No. 173/Chd/CHD/2018 is dismissed.

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