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TMI Blog2019 (2) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... ional as prescribed under the Code and Rules thereon. Averments in brief: 2.1 The Petitioner / Financial Creditor represents M/S Reliance Industries Limited as their del-credere agent and entered into an Agreement dated 01.07.2004 with M/S Reliance Industries Limitedn The Petitioner also deals in distribution and supply of polymers and various types of Chemicals and also represents manufacturing companies. The Petitioner was approached by Corporate Debtor for extending credit facility for the products that the Corporate Debtor would procure from Reliance. 2.2 Consequently, an Agreement dated 06.06.2012 was entered into between the Financial Creditor/Petitioner and Corporate Debtor for extending credit facility to Corporate Debtor for purchase of polymers from Reliance. Upon release of payment to Reliance by Financial creditor, the Reliance supplied polymers to Corporate Debtor and in turn Corporate Debtor was obligated to make payment to Financial Creditor along with applicable interest as per the Agreement. 2.3 It is the case of Financial Creditor that it has a discretion to extend a credit period of 20-30 days to the Corporate Debtor by charging interest at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner and Reliance Industries Ltd and contends that Corporate Debtor is not a party to the said agreement and has no relevance and it does not bind Corporate Debtor in any manner. 3.5 It is the case of Corporate Debtor that the Agreement dated 06.06.2012 marked as Annexure-7 to the Petition is for placing orders on Reliance Industries and for payment of interest for credit period but does not relate to any money lent by Petitioner to Corporate Debtor and that there is no financial debt involved in this case. 3.6 It is the case of Corporate Debtor that Petitioner had not provided any evidence to show any payment made by it to Reliance was with the consent of Corporate Debtor and no such confirmation is given by Reliance and that the alleged transactions will not establish Petitioner a Financial Creditor to the Corporate Debtor. 3.7 The Corporate Debtor further avers the alleged transactions would at most amount to sale of goods by Reliance Industries and would not amount to a financial transaction between the Petitioner and Corporate Debtor. 3.8 It is further contended already reply to the legal notice issued by the Petitioner was given denying and disputing the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Petitioner was doing as per the terms of Credit Agreement. 4.8. It is also averred, in the reply dated 13.10.2017 to the legal notice issued by Petitioner, the Corporate Debtor admitted that Petitioner is not an Operational Creditor. 4.9. The Petitioner prayed this Tribunal to admit the petition as it is able to establish that Corporate Debtor defaulted in terms of payment. FINDINGS 5. I heard the Counsels for Financial Creditor and Corporate Debtor. The written submissions are filed on both sides. The point raised in the written submissions will be referred to in the course of the order. The Petitioner claimed that it is a Financial Creditor in connection with transactions between M/S Reliance Industries Limited (RIL) and Corporate Debtor. The case of Corporate Debtor that Petitioner is not a Financial Creditor. The contention of Corporate Debtor, Petition under Section 7 of IBC, is not maintainable at the instance of the Petitioner. It is the case of Corporate Debtor that there is no financial debt due by him to the Petitioner. On the other hand, the contention of the Financial Creditor that Corporate Debtor was liable to pay the money to it. 6. It is the case of Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dealing with business of manufacturing and selling Petrochemical products and in the course of its business M/S RIL engaged services of agent on del-credere basis for the sale of its products. The Petitioner is appointed as del-credere agent for M/S RIL. Thus, Financial Creditor is able to establish it was appointed as del-credere agent for M/S RIL. The Agreement was renewed on 29.06.2017 which is marked as Annexure-6 shown at page nos. 170-179. So in the place of previous agreement of agency on del-credere basis a new agreement was executed wef 01.07.2017. The Financial Creditor filed documentary proof establishing it is a del-credere agent of M/S RIL. 10. The next important piece of document is Annexure-7. This agreement was entered between the Financial Creditor and Corporate Debtor dated 06.06.2012. This document is sufficient to conclude Petitioner is a Financial Creditor. There is absolutely no dispute by Corporate Debtor about execution of Agreement dated 06.06.2012 marked as Annexure-7. It is shown at page nos 180-183 in the typed set. The Petitioner is shown as first party and Corporate Debtor is shown as Debtor / Second party. The document clearly describes Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices are also filed. If there is a direct dealing with M/S RIL by the Corporate Debtor then how the Financial Creditor is shown as consignee in the tax invoices. Thus, material is placed by the Financial Creditor that purchase orders are placed through it with M/S RIL and goods were released on payment by Financial Creditor. The Corporate Debtor is contending that the agreement is only for payment of interest on the value of goods received from M/S RIL in case of delayed payment. 13. It is the case of Corporate Debtor that it paid to M/S RIL the amount involved in the invoices. Absolutely there is no proof filed by Corporate Debtor that it paid the monies covered by the invoices. Secondly, it has not filed single invoice if really it had paid money to M/S RIL. On the other hand it is the Financial Creditor who has filed the copies of invoices. It goes to establish that Financial Creditor paid money covered by the invoices and therefore it is in custody of all these invoices. The Learned Counsel for the Corporate Debtor is orally contending that Corporate Debtor had paid monies covered by invoices. The Corporate Debtor had not produced any evidence to show that it had directly paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty 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) That the order of moratorium shall have effect from 19th February, 2019 till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under SubSection (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. (e) That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016. (f) That this Bench hereby appoints Ms. Sandhya Tadla, having IBBI Regn No. IBB1/1PA-002/1P-N00186/201718/10503) #R/o ExResolve LLP, 402B, Technopolis, Chikoti Gardens, Begumpet, Hyderabad - 500016 as Interim Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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