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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 ..... ead with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules, 2016 (the Rules, for short), on 11.05.2017. The Application has been filed against M/s. A & A International Trading Private Limited (Corporate Debtor, for short). In the Application, the Operational Creditor claimed that the outstanding debt is to the tune of USD 445416 which fell due on 03.02.2016 but the default occurred on 07.07.2015. The Operational Creditor has also sent the Demand cum Statutory 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 exchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn using the following formula (the "Price Adjustment Formula") From this, it is clear that any price adjustment for the consignment received will have to be based on Gross Calorific Value (GCV) on as "received basis". Since the variation pointed out by the Corporate Debtor is only on Sulphur content and there has been no shortfall on that account. No price adjustment is permissible as per the Sale Purchase Agreement. The Corporate Debtor has also given the copies of many Debit Notes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Sale and Purchase Agreement. 7. The Ld. Counsel for the Operation Creditor has submitted one judgement that has been passed by the Hon'ble NCLAT in Kirusa Software (P.) Ltd. v. Mobilox Innovations (P.) Ltd. wherein, the term "dispute" as mentioned under Section 8(2)(a) of I&B Code, 2016, which is further mentioned under Section 9(5)(d) of I&B Code, 2016 has been interpreted. Ld. Sr. Counsel for the Corporate Debtor submitted another judgement of the Hon'ble 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.) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor stands rejected. 8. Ld. Sr. Counsel for the Corporate Debtor also referred to the ruling that had been passed by the Hon'ble Apex Court of India titled Fateh Chand v. Balkishan Dass [1964] 1 SCR 515, which provides that in case of breach of the contract, the compensation has to be ascertained having regard to the conditions existing on the date of the breach of the contract. This authority is not applicable to the facts and circumstances of the case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly shall get completed within 180 days, reckoning from the day this order is passed. 11. 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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