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TMI Blog2019 (11) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... nce furnished shows that the aforesaid debt is due and not paid till date. iii. There is no proof of existence of any earlier dispute between parties or arbitration proceedings filed before the Competent Authority. Since all the requisite conditions are fulfilled in the instant case, the application submitted by operational Creditor is Complete in all respects and there is no defect pointed out by Corporate Debtor - As such the instant Application deserves to be admitted. Application admitted - moratorium declared. - TIBA No. 25/KOB/2019 ( IBA No. 598/2019 ) - - - Dated:- 7-11-2019 - Ashok Kumar Borah , Member ( J ) And Veera Brahma Rao Arekapudi , Member ( T ) For the Appellant : Santhosh Mathew and Vijay V. Paul For the Respondents : Poulose C. Abraham and Pranoy Harilal , Advocates ORDER 1. This is an application filed under section 9 of Insolvency Bankruptcy Code, 2016 (hereinafter as I B Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter as Rules) by the Petitioner M/s. Roxcel Trading GmbH (hereinafter as 'Operational Creditor') against M/s. NUI Pulp and Paper Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt arising out of the above invoices till date except for making payment of USD 41,978 on 11.05.2017. Thereby the total amount due and payable by the Corporate Debtor is USD 10,12,207.21 (USD Ten Lakhs Twelve Thousand Two Hundred and Seven Dollars and Twenty Cents) with interest at 10% per annum amounting to USD 71,636.20 (Seventy-One Thousand Six Hundred and Thirty-Six Dollar and Twenty Cents). The debt is in USD and has been converted to INR at the rate of ₹ 70.54 (as on 04.03.2019) Rs. 7,64,54,285.20 (Rupees Seven Crores Sixty-Four Lakhs Fifty-Four Thousand Two Hundred and Eighty-Five and Twenty Paisa). The Corporate Debtor has not paid the outstanding dues despite reminders. Therefore, the Operational Creditor sent a demand notice on 22.03.2019 to repay the outstanding amount within 10 days of receipt of notice. Having received the notice on 25.03.2019, the Corporate Debtor replied to the notice on 30.03.2019 informing that substantial sums were paid towards the invoice mentioned in the application and forwarded a bank statement on 01.04.2019 as proof of payment which were erroneously not enclosed to their reply on 30.03.2019. However, the Operational Creditor has not ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. The operational Creditor set forth 3 main contention regarding the payment is that; I. The Bank statements are ledger entries without any seal/ letter head of any bank extracted from the books of accounts of the Corporate debtor therefore the same cannot be considered as proof of payments; II. The alleged statements are not attested and does not satisfy /comply with any criteria to be regarded as 'proof of payments; and III. The Bank statement is not complete as is evident from the page number containing therein. 11. Further the Operational Creditor also stated in the application that the amount was apportioned /accounted by the Operational Creditor in the name of two entities i.e.; NUI PULP AND PAPER INDUSTRIES PVT LTD (Corporate Debtor) and MATHEEL. Accordingly, the payments made in the Bank statements dated 04.10.2016, 26.10.2016, 27.01.2017, 11.05.2017, 02.08.2017 and 06.10.2017 were also apportioned between these two entities. DATE AMOUNT APPORTIONMENT 04.10.2016 USD 377978 [₹ 2,52,56,060] USD 33770- MATHEEL USD 40208- COR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss transaction with Roxcel Handel is commenced only since October 2016, During the discussion between two entities the payment terms were confirmed by the Corporate Debtor was L/C or cash in advance, which terms were complied by the Corporate Debtor by way of advance remittances for Imports. As regards, the amounts paid on 04.10.2016, 26.10.2016, 27.01.2017, 11.05.2017, 02.08.2017 and 06.10.2017 had been in receipt of the said advance remittances. The invoices raised in the name of the Corporate Debtor by Roxcel Handel; however, the operational Creditor, on its own has attempted to combine the dues of a foreign entity (MATHEEL) and that of the Corporate Debtor. In the normal course of business, transfer of funds towards the dues of another company ought to be supported by approval of the Corporate Debtor followed by a debit note for the agreed amounts. No approval regarding such transaction has been taken from the corporate Debtor. 16. The Corporate Debtor further claimed that admittedly since the month of October 2017 quality issues had cropped up over the materials supplied by Operational Creditor and is still under dispute. Thus, invoices No's 2017INV09404 2017INV10887 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor also drew attention of the Tribunal to the e-mails dated 05.10.2016 (Annexure-II 17 to the Application) and 12.05.2017 (annexure II 20 to the Application) in this regard. At no point of time, the Corporate Debtor has raised any objection for the apportionment of payments received by the Operational Creditor. Corporate Debtor cannot raise an objection now, as an afterthought. 20. It was further stated that the SWIFT copies of the payments made furnished by the Corporate Debtor in their Counter did not contain the invoice numbers which are the subject matter of the instant application except for a partial payment towards Invoice No. 2017 INV02295. And as far as the advance remittances is concerned no logical explanation is drawn as to how the Corporate debtor paid the amounts before the date of invoice, even though there is a window of 90 days for payment from the date of Bill of Lading. 21. The Corporate Debtor in response to the Rejoinder stated that the 'substantial payments 'as mentioned in the reply notice pertains to the amount still under contingency as a part of the disputed invoices after discount. And the 'full and Complete payments' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; as on 31.03.2019 an amount of ₹ 91,05,994 is still due to the Operational Creditor. This indicates the averment made by the Corporate Debtor that they have made advance payments for the supplies is not supported by any evidence. 25. We did not agree with the contention of the Corporate Debtor that the amount transferred by them was accounted for by the Operational Creditor unilaterally in the name of two entities, as several e-mail communications dated 06.10.2016,17.05.2017, 13.10.2017 regarding the apportionment were placed on record and nowhere the Corporate Debtor has objected for such apportionment. This clearly shows the business practice prevailing between the parties. 26. It is also appeared from the records that by way of a division agreement and board resolution, RoxcelHandelsgesellschaft MBH' decided to spin off all the assets of RoxcelHandelsgesellschaft MBH to operational Creditor. Therefore, the debt now stands transferred and vested with Operational Creditor. The Corporate Debtor has done e-mail correspondences with the new entity i.e. Roxcel Trading Gmbh regarding supplies made and outstanding dues. Hence, they cannot claim ignorance of the same at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factors mentioned in Section 9(5) of the Act. 30. After perusal of case record, it is established that: i. The operational debt due to pay exceeds ₹ 1 Lakh ii. The documentary evidence furnished shows that the aforesaid debt is due and not paid till date. iii. There is no proof of existence of any earlier dispute between parties or arbitration proceedings filed before the Competent Authority. 31. Since all the aforesaid condition are fulfilled in the instant case, we find application submitted by operational Creditor is Complete in all respects and there is no defect pointed out by Corporate Debtor. As such the instant Application deserves to be admitted. Therefore, Application No. TIBA/25/KOB/2019 is ADMITTED and the moratorium is declared for prohibiting all of the following in terms of Section 14(1) of the Code as amended: a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) transferring, encumbering, alienating or disposing off by the corporate debtor any of its assets or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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