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TMI Blog2019 (4) TMI 1743X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Operational Creditor supplied goods to the Corporate Debtor. The Purchase orders were raised by the Corporate Debtor from Bangalore. b) It is averred that the as per the directions of the Corporate Debtor and based on the International Distributor Agreement entered between the Operational Creditor and Corporate Debtor on 01st July, 2010 the Operational Creditor supplied goods to the Corporate Debtor. c) It is averred that on supply of goods the Operational Creditor raised Seven Invoices on the Corporate Debtor. d) It is averred that the total amount payable under these seven invoices including interest at the rate 12% per annum is Rs. 10,995,593/- .This is equivalent to USD 169,163. e) It is averred that as per the Agreement if payment is not made within 30days from the date of invoice then interest will be charged by the Operational Creditor. 3. The averments made in the Counter are as follows: a) It is averred that the Operational Creditor never supplied goods to the Corporate Debtor. b) It is averred that the Purchase orders and invoices filed by the Operational Creditor along with the petition shows that the goods are supplied to M/S. Excel Eltech Pte Ltd, Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Excel Eltech Inc, USA. j) It is averred that the correspondence took place between the Excel Eltech Inc, USA and the operational creditor clearly establish that there was a pre-existing dispute between the parties in relation to return of inventory. k) It is averred that there is no Creditor and Debtor relationship between the Operational Creditor and Corporate Debtor. 4. The averments made in the rejoinder are as follows: a) It is averred that the nature of the transaction between Operational Creditor and Corporate Debtor is of Principal and Principal Basis as per the International Distribution Agreement (IDA). b) It is averred that goods once sold by the Operational Creditor cannot be returned. However, there are very limited circumstances in which goods can be returned which are mentioned in clause 4 of the IDA. c) It is averred that as per the requirement of the Corporate Debtor the Bills were raised at the address of the Excel Etech Inc, USA and the goods were shipped to Excel Eltech Pte, Singapore. It is a well known commercial practice that the billing address and shipping address is mentioned in the invoice as per the requirement of the buying customer. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor that the Purchase orders and invoices raised by the Operational Creditor clearly show that the goods are supplied to M/S. Excel Eltech Pte Ltd, Singapore and raised bill on M/S. Excel Eltechlnc, USA . The Corporate Debtor is just an ordering customer and all the bills were raised on M/S. Excel Eltechlnc, USA and not on the Corporate Debtor. 11. The Case of the Corporate Debtor is that the goods were never supplied to them and the Corporate Debtor is only an ordering customer and all the bills were raised on M/S. Excel Eltechlnc, USA but not on the Corporate Debtor. It is further case of the Corporate Debtor that the Invoices are raised on US Company not on the Corporate Debtor, therefore the Company is not liable to pay the invoice amount and also goods are not delivered to the Company by the Petitioner. 12. It is true that the petitioner supplied the goods as per the directions of the Corporate Debtor. There is no dispute with respect to quality and delivery of goods. The goods were delivered as per the Purchase orders issued by the Corporate Debtor. 13. It is true from the Invoices raised by the Operational Creditor it goes to show the Operational Creditor Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational Creditor and there is no relationship between Operational Creditor and USA Company. 16. The Petitioner and Corporate Debtor entered in to International Distributor Agreement on 1 st July,2010. The Corporate Debtor is shown as Distributor and as per Clause 2(c) of the Agreement the relationship of the Petitioner and Corporate Debtor is that of Independent Contractors. The supply of goods to the Corporate Debtor is in accordance with said agreement and the Petitioner is nowhere connected to the USA Company. Only on the Instructions of the Corporate Debtor in the purchase orders the goods are invoiced to the USA Company and the Corporate Debtor being the distributor is accountable for invoices raised by the petitioner. 17. It is further case of the Corporate Debtor that the Petitioner has unilaterally terminated the International Distribution Agreement with effect from 30th September,2016, due to this the Corporate Debtor suffered huge loss. The Corporate Debtor relied on E-mail Correspondence between the Petitioner and Corporate Debtor and contented that there was a pre-existing dispute between the parties in relation to return of Inventory and adjustment of invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in 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) The interim resolution professional shall perform all his functions religiously and strictly which are contemplated, inter alia, by Sections 15, 17,18,19,20, and 21 of the Code. He must follow best practices and principles of fairness which are to apply at various stages of CIRP. His Conduct should be above Board and independent and he should work with utmost integrity and honesty. It if fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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