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TMI Blog2019 (5) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether during the period of corporate insolvency resolution process supply of goods paid for could be with held on the ground that the supplier has to recover arrears of a debt in respect of the pre-corporate insolvency period. The Liquidator has raised the issue in the instant application filed under section 60(5)(c) read with section 35(1) of IBC, 2016, with a prayer for issuance of directions to the non- applicant Respondent Electro Magnetic Industries (for brevity Non-Applicant-Respondent) to release the goods forthwith lying with it in term of Purchase Order No. EEPL/PO1541045 dated 16.07.2018. 2. Before embarking upon the legal controversy raised in the instant application, few material facts may first be noticed. In respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- was paid in addition to packing charges of 2.5% & IGST @ 18% aggregating to Rs. 34,47,075/- (Annexure A-3). 4. It is pertinent to mention that the Company in liquidation has been in continued business with the Non-Applicant-Respondent even before the admission of the petition for CIRP on 05.09.2017. 5. The goods were manufactured by Non-Applicant-Respondent which were duly inspected by the representative of the end user being Sanjay Gandhi thermal Power Project, Madhya Pradesh Power Generating Company Ltd. A Material Dispatched Clearance Certificate bearing No. 07-09/MPPGCL/R&M/SGTPS/1609 dated 03.11.2018 was also issued (Annexure A-5). The payment was to be made by the Corporate Debtor against the proforma invoice before dispatch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made efforts to contact Non-Applicant-Respondent to enquire about the non-supply of goods. No response was received by the Transporter's office and the Applicant came to know that the material was unloaded by Non-Applicant-Respondent/Consignor due to some outstanding payments from the Corporate Debtor. 6. It has not been disputed that there was outstanding payment payable by the company-in-liquidation in respect of the period preceding the date of initiation of CIR process which is obviously before 05.09.2017 and the Non-Applicant-Respondent have failed to file any claim in that regard despite the issuance of Public Notice inviting the claims. 7. The averments made in the application further suggests that the material was to be sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsels for parties and are of the considered view that there is a basic distinction between the transaction & payments pertaining to period prior to CIR period & the transactions /payments which are required to be made during CIR period. The pre-CIR period payments are to be part of the claims made before the Resolution Professional whereas the post CIR period transactions are not treated on the same footing. The goods & services supplied during CIR period has to be fully paid in order to carry on the business of the Corporate Debtor as a going concern. In that connection the Resolution Professional and Committee of Creditors are fully empowered to place an order for supply of goods against the consideration for those goods. 10. In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The Non-Applicant-Respondent has hampered the functioning of RP and thus liquidator to conduct the business of the corporate debtor on day to day basis.
12. As a sequel to the above discussion, we accept the prayer made by the applicant and direct the Respondent to supply the goods and dispatch the same to the end user namely Sanjay Gandhi Thermal Power Project, Madhya Pradesh Power Generating Company Ltd., Birsinghpur Pali, Distt. Umaria -484552, Madhya Pradesh . Let the needful be now done in one week under intimation to the Registrar of the NCLT. Non-Applicant-Respondent is also saddled with cost of Rs. 50,000/- which may be deposited in the account of the company in liquidation.
Application stands disposed of. X X X X Extracts X X X X X X X X Extracts X X X X
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