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TMI Blog2018 (12) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed for initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 2. The case of this Operational Creditor is a Private Limited Company incorporated on 08.06.1989 and engaged in the business of providing quality logistics for all kind of import, export and domestic movement of goods/ cargo. 3. The Operational Creditor is inter alia engaged in the business of providing quality logistics services for all kind of import, export and domestic movement of goods and cargo. The Operational Creditor has been appointed as a Clearance and Forwarding Agent (C F Agent) for the said Corporate Debtor and its sister concern Company. The said Operational Creditor has taken the responsibility of facilitating the entire aspects of clearance uptil issue of Bill of Lading for the good of the Corporate Debtor. 4. The Counsel for the Operational Creditor states that in the course of business, the Corporate Debtor along with its sister concern, Trimurti Corn Agro Foods Pvt. Ltd. had exported various goods through the Operational Creditor. Accordingly, the Operational Creditor rendered services for exporting their shipments and raised invoices upon Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urti Corns Agro Foods Pvt. Ltd. 15.10.2016 856750 10,00,000 6. Mrunmaha Agro Foods Pvt. Ltd. 15.10.2016 056229 1,67,815 8. After that, on 04.10.2016, the Operational Creditor presented the cheque dated 03.09.2016 for a sum of ₹10,00,000/- issued by the Corporate Debtor at Chennai Development Bank of Singapore (DBS). However, the said cheque was dishonoured by the Bank and return with an advice Payment stopped by Drawer . Being aggrieved, and given the Promissory Note being issued by the Corporate Debtor, the Operational Creditor addressed a Winding-up Notice dated 10.10.2016 to the Corporate Debtor s sister concern calling upon them to pay a sum of ₹46,67,815/- towards the total outstanding invoices. The Operational Creditor further on 02.01.2017, presented two cheques issued by Trimurti Corns Agro Foods Pvt. Ltd. for ₹10,00,000/- each drawn on DBS Bank for realisation and both the cheques were dishonoured and returned by the Bank with advice that payment stopped by Drawer ,On the same day, Operational Creditor prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort/ export of Farm produce including fruits and vegetables and that the Operational Creditor is engaged into the business of facilitation of Export Import facilities including Freight Forwarding and acting as a Clearance and Forwarding Agent for the Corporate Debtor.Under the arrangement, the Operational Creditor requires to facilitate the entire transaction upto the release of the Bill of Lading so that the Ship Master of the Ship affirms the same and the goods can sail to effect the final sale and thereby completion of the transaction. 14. The Counsel for the Corporate Debtor states that the Operational Creditor withheld the bills of lading of the Ship and the goods could not be sailed off the port and the goods were required to be kept in the warehouse of the Port. It is a settled position of law that a Bill of Lading is a document which confirms the ownership of the goods and the possession of the same, and the said Bills of Lading are still with the Operational Creditor till date, and hence the said goods are still in possession of the Operational Creditor. The Operational Creditor dispatched invoices and expressly communicated that till the invoices were not cleared no ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and conditions of the arrangement with the Corporate Debtor has resulted in loss of ₹42,00,000/-. The Operational Creditor holds various Bills of Lading which means he is in possession of the Goods of the Corporate Debtor. The Operational Creditor is also holding original Title Deed of the Property to the tune of ₹27,00,000/-. 20. It appears from the record that the Corporate Debtor having defaulted in making payment to the operational creditor.As discussed above there being no dispute in respect of the quality of goods or service, the dispute which has been raised after receiving the demand notice is not covered under the meaning of existence of dispute under the Insolvency and Bankruptcy Code, 2016. Thus arguing that dispute is pre-existence in respect to the services provided by the Operational Creditor is not sustainable. 21. This Bench has view that under I B Code, it need not be seen whether the company is unable to make payment or that the relief sought has bonafide or not. The only criterion to be looked into is as to whether debt and default are in existence as on the date of filing case. Under Section 9 of the Code, if corporate debtor brings it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor any of its assets or any legal right or beneficial interest therein; 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (b) That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (c) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (d) That the order of moratorium shall have effect from 20.11.2018 till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be. (e) That the public announcement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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