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TMI Blog2019 (3) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... l no way cast any doubt over the existence of debt or default. In view thereof, the material subsequently set out by this Corporate Debtor pales into insignificance as against the proof of existence of debt and default against the Corporate Debtor established by the Operational Creditor. Accordingly, for the reasons aforestated, this Company Petition is hereby admitted by appointing Mrs. Jayashree S Iyer (Reg. No. IBBI/IPA-002/IP-N00741/2018-2019/12211) as the Interim Resolution Professional by declaring moratorium u/s 14 accordingly. - CP/1182/IB/2018 - - - Dated:- 12-2-2019 - MR B.S.V. PRAKASH KUMAR, MEMBER (JUDICIAL) AND S. VIJAYARAGHAVAN, MEMBER (TECHNICAL) For The Operational Creditor : Mr Arul Gnana Prakash and Vasanth Rajasekaran, Advs. For Phoenix Legal For The Corporate Debtor : Mr K. Gaurav Kumar, PCS and Mrs. Alpa Jain, PCS ORDER MR B.S.V. PRAKASH KUMAR, MEMBER (JUDICIAL) It is a Company Petition, the Operational Creditor has filed against the Corporate Debtor u/s 9 of the Insolvency Bankruptcy Code, 2016 ( the Code ) for initiation of Corporate Insolvency Resolution Process ( CIRP ) against the Corporate Debtor on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance entered between SJC and the Corporate Debtor until before a reply was given by the Corporate Debtor to the Section 8 Notice issued by the Operational Creditor. 5. Now if the facts of this transaction are looked into, it is on July 11, 2017 this Corporate Debtor sent an e-mail to this Operational Creditor for finance arrangement for Barite procurements.This e-mail is a trigger point for causation of this transaction. The sum and substance of the correspondence in between these two parties is that M/s. Andhra Pradesh Mineral Development Corporation Limited (APMDC), basing on an agreement dated 20.06.2016 in between APMDC and the Corporate Debtor, would provide Barite Lumps to the Corporate Debtor, since such an agreement was there in between APMDC and the Corporate Debtor, the Operational Creditor was asked to open Letter of Credit-LC (based on the Purchase Order issued by the Corporate Debtor) favouring APMDC for supply of Barites to the Corporate Debtor. On having back-to-back correspondence between the Operational Creditor and Corporate Debtor, the Operational Creditor agreed that the Letter of Credit would be given to APMDC for the supply of Barites, since Letter of Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor paid ₹ 35,37,499 to the Operational Creditor. 10. Therefore, the Operational Creditor counsel submits that the total amount invoiced by the Operational Creditor under the invoices is ₹ 24,63,01,503, since the Corporate Debtor paid ₹ 35,37,499 on 22.02.2018, a balance of ₹ 24,27,64,004, as claimed by the Operational Creditor remains unpaid as on date along with interest as indicated above. 11. Basing on this factual matrix, the Operational Creditor on 02.05.2018 issued Section 8 Notice to the Corporate Debtor demanding payment in respect to unpaid Operational Debt due from Corporate Debtor. 12. To which for the first time, the Corporate Debtor stated that the Operational Creditor is wholly controlled by the Company M/s. Sojitz Asia Pte. Limited, which again is controlled by M/s. Sojitz Corporation (SJC) based out of Japan, by virtue of this operational creditor being a group company of SJC, it is bound by the Confidentiality Agreements dated 27.03.2015 and 07.04.2016 and Memorandum of Understanding for strategic business alliance entered between the Corporate Debtor and SJC clearly proves that the understanding between the two c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction is altogether different from other transactions, it is imperative to look into the first e-mail regarding this transaction by the corporate debtor to the Operational Creditor which is as follows: From: RS RAJAN [mail to:[email protected]] Sent: Tuesday, July 11,2017 5.11 PM To: karita.hiroki Cc: [email protected]; 'Irfan'; [email protected]; [email protected]; [email protected]; [email protected] Subject: Finance arrangement for Barite procurement Dear Mr. Karita, Good afternoon, This refers to our telephonic talk today. The proposal transaction is like this: * Sojitz to open Letter of Credit (based on the PO issued by OREN) favouring APMDS for supply of Barites to OREN. * The LC terms will be Payable against drafts of 90 Days DA * The bills drawn by APMDC for supplies made to OREN will become due for payment after 90 days from the date of delivery. * Oren will take delivery of Barites from APMDC, process and ship to its buyers. OREN has sufficient orders for Barites and the shipments will be on a regular basis. * Sojits will make payment of the APMDC Bills under the LC on due date (90 days f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action separately. The quantity is mentioned as 38,000 MTs. 18. Apart from the material placed above, if the letter dated 17.07.2017 written by APMDC to the Corporate Debtor is looked into, it is evident that this very Corporate Debtor requested APMDC on 13.07.2017, that is after e-mail correspondence between the Operational Creditor and the Corporate Debtor from 11.07.2017 to 13.07.2017, to assign 38,000 MTs of 'A' Grade Barites Lumps in favour of M/s. Sojitz India Pvt. Limited (Operational Creditor), out of the contract quantity of 1,80,000 MTs under agreement dated 09.06.2016. It is also evident from this letter that the Operational Creditor, through a letter dated 13.07.2017 as to supply of 38,000 MTs of 'A' Grade Barites with 4.27SG, requested APMDC to assign the barites described above, therefore the operational creditor could purchase and lift the material. It has further requested APDMC to issue delivery order for 38,000MTs of 'A' Grade Barytes with 4.27SG upon receipt of LC. It is evident in the letter dated 13.7.2017 written by the Corporate Debtor to APMDC requesting APMDC to assign 38,000MTs in favour of the Operational Creditor. In addition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te debtor to say that the Operational Creditor used the Corporate Debtor as facade in between the Operational Creditor and the corporate debtor, but there is material with the Operational Debtor to show that this transaction was proposed by the Corporate Debtor and thereafter in pursuance of it, the Operational Creditor gave letter of credit to APMDC for the entire purchase money of 38,000MTs, then the corporate debtor placed separate purchase order placed upon the operational creditor for supply of the same material. And no material with the corporate debtor to show that AI Alia and the operational creditor have direct business relationship except a bald statement from the corporate debtor, whereas the operational showed separate invoices raised against the corporate debtor for the supply of Barite and on the Corporate Debtor own showing it is evident that the Corporate Debtor supplied material to AI Alia by raising separate invoices against AI Alia. And no material with the Corporate Debtor to show that the transaction in between the Operational Creditor and the Corporate Debtor is not an operational debt and the relation between them is not creditor and debtor relationship, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act); (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. (II) 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. (III) 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. (IV) That the order of moratorium shall have effect from 12.02.2019 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. (V) That the public announcement of the Corporate Insolvency Resolution Process shall be made immediately as specified under Section 13 of the Code. (VI) That this Bench he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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