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TMI Blog2017 (8) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... ving been satisfied that all the requirements under law have been fulfilled, we are inclined to admit the Petition and order the commencement of the Corporate Insolvency Resolution Process which ordinarily shall get completed within 180 days, reckoning from the day this order is passed. The Operational Creditor did not propose the name for appointment of Interim Insolvency Professional. Therefore, we direct the Registry to make a reference to the IBBI for recommending the name an Interim Insolvency Professional within 10 days of the reference. However, we declare the moratorium which shall have effect from the date of this Order till the completion of Corporate Insolvency Resolution Process, for the purposes referred to in Section 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice on 05.04.2017 with acknowledgement due that has been received by the Corporate Debtor and the Corporate Debtor has given reply to the same on 13.04.2017 wherein for the first time some issues pertaining to the inferior quality, foreign exchange loss, storage loss and other such losses relating to the consignment which was supplied by the Operational Creditor through the Vessel MV Yasa Unsal Sunar. But, the objections raised seem to be an afterthought and in disregard to the terms and conditions of the sale and purchase contract dated 02.03.201. To make the factual position more clear the relevant detail is given in the following paras:- 2. The Corporate Debtor in this case had accepted the consignment at the port of discharge whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes received by the Corporate Debtor to whom they have purportedly supplied and sold the Coal. However, there is no evidence on record to link it to the consignment received from the Operational Creditor. 4. It may not be out of place to mention that under para 7.3 of the Sale Purchase Agreement, the analysis certificate given by an independent analyst certifying the results is final, conclusive and binding on the parties save for fraud or manifest error (IGI for discharge port). Therefore, once the analyst's certificate is issued confirming the specifications as given in the contract to the quality of the coal and on the acceptance of the same by the Corporate Debtor, it is deemed as final, conclusive and binding on both of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le NCLAT that has been delivered on 31.05.2017 in MCL Global Steel Pvt. Ltd. And Ors. Vs. Essar Project India Ltd. And Ors., Global Steel Pvt. Ltd. And Ors. Vs. Essar Project India Ltd. And Ors. , wherein the interpretation of the term dispute given in Kirusa Software (P.) Ltd.'s case (supra), was followed. The Hon'ble NCLAT in Kirusa Software (P.) Ltd.'s case (supra) explained the meaning of the term dispute and laid down the principle under para 33 of the judgement which is as follows:- ......if there is a genuine dispute raised before any court of law or authority or pending in a court of law or authority including suit and arbitration proceedings. Mere a dispute giving a colour of genuine dispute or illusory, rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because there does not appear any breach of the contract by the Operational Creditor in this case. The Ld. Sr. Counsel also tried to lead us to the Tamilnadu Prohibition of the Charging Exorbitant Interest Act, wherein Section 3 provides that no person shall charge exorbitant interest on any loan advanced by him. But, this enactment is confined to the Money Lending Loan Advance. It does not relate to other commercial transactions. Therefore, the Act relied upon by the Counsel representing the Corporate Debtor is not relevant to the issue under discussion. 9. The Ld. Counsel for the Operational Creditor in his submissions has stated that the purported dispute is not a genuine as has been raised by the Counsel on behalf of Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Corporate Insolvency Resolution Process, for the purposes referred to in Section 14 of the I B Code, 2016. We Order to prohibit all of the following, namely : (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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