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TMI Blog2019 (3) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking for unfolding the Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor. Part-IV of Form-V being the format of application prescribed under Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 discloses the details of transactions which is to the following effect: Amount of debt due as per demand note/proforma invoice dated 14.08.2018 raised by the Operational Creditor in terms of penalty clause (No. 10) contained in the sale purchase Agreement dated 21.02.2017 is Rs. 61,72,850/-. No interest has been calculated on the above amount. Interest will become payable from the date of the proforma invoice up to the date of realization. DETAILS OF TRANSACTION The debt has arisen out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable from 14.08.2018, i.e. from the date of the demand note/proforma invoice. 2. At the time of moving the application taking into consideration the details of transactions as disclosed in Part-IV of the prescribed form and not being convinced about the existence of relationship as between the petitioner and respondent being that of an Operational Creditor and a Corporate Debtor as defined under the provisions of IBC, 2016 and the amount claimed not being an 'Operational Debt' strictly falling within the confines of Section 5(21) of IBC, 2016 this Tribunal posted the matter vide order dated 06.12.2018 to decide on the issue of maintainability on 17.01.2019. However, the Corporate Debtor in the meanwhile had entered its appearance throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the debt can be considered as an 'Operational Debt' provided the claim arises out of the provisions of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to either the Central Government, any State Government or any Local Authorities. 5. Thus, it is clearly seen from the above definitions that the Operational Creditor should have supplied goods or rendered any services to the Corporate Debtor. However, in the instant case, even as per the agreement which has been entered into as between the parties and which was also referred at the Bar during the course of arguments on maintainability annexed as Annexure-5, wherein, it is seen that the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd purchase of goods despite the petitioner being a buyer and not the seller. 8. Further, in this connection, the definition of 'debt' as defined under Section 3(11) was also pointed out. However, the interlink between Claim, Debt, Operational Creditor and Operational Debt has been dealt in detail by this Tribunal in the matter of Pramod Yadav v. Divine Infracon (P.) Ltd. [CP (IB) 209 (ND) of 2017] as well as in Jindal Steel and power Ltd vs. DCM International Ltd. in cp No. (IB)200/ND/12017 it is not necessary for this Tribunal to revisit the said proposition in relation as to when a 'debt' can be considered as an 'Operational Debt'. Both the above decisions it is to be noted have also been upheld in appeal by Hon'ble NCLAT in the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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