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TMI Blog2021 (9) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... n the category of 'Operational Debt'. Thus, the claim of the Operational Creditor in the instant Application which is totally based on the advanced amount of ₹ 7,05,00,000/- paid towards supply of 5000MT Maize and as such, the instant claim cannot be treated as Operational Debt as per Section 5(21) of the IB Code, 2016 nor the Applicant herein be called as Operational Creditor as per Section 5(20) of the IB Code, 2016. Such being the case, the instant Application cannot be admitted U/s. 9 of the Code. Petition dismissed. - CP (IB) No. 302/9/HDB/2020 - - - Dated:- 5-8-2021 - M.B. Gosavi, Member (J) And Dr. Binod Kumar Sinha, Member (T) For the Appellant : Damodar Mundra For the Respondents : C. Mrudula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor failed to supply the material to the Operational Creditor. e) Thereafter the Operational Creditor has written number of times to the Corporate Debtor for the supply of 5000 MT of Maize but there was no response from the Corporate Debtor. In fact till date the outstanding dues are not paid by the Corporate Debtor. f) That the Operational Creditor issued notice to the Corporate Debtor for the payment of the amount or supply of the material. Corporate Debtor replied to the notice, but has not disputed the amount. g) That after several reminders from Operational Creditor, Corporate Debtor did not meet its commitments. Hence, the Operational Creditor has decided to approach this Adjudicating Authority to init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor had addressed numerous communications calling upon the Operational Creditor to pay the difference amount of ₹ 50,00,000/-. However, the Operational Creditor till date had not come forward to pay the said amounts. g) The Operational Creditor herein had issued a Demand Notice dated 20.01.2020 under the provisions of the Insolvency and Bankruptcy Code, 2016, to which the Corporate Debtor had replied vide its Reply dated 10.02.2020 requesting the Operational Creditor to pay the difference amount of ₹ 50,00,000/- for supplying the Maize. h) That the Corporate Debtor has a right to deduct 20% of the amount for returning the advance amount. That the Corporate Debtor is not in a position to supply the Maize for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor has agreed to deliver 130 Matric Tons of Sugar to the Operational Creditor, for the same, the Operational Creditor paid an advance amount total ₹ 34,90,180/- to Corporate Debtor and Corporate Debtor has issued Proforma Invoice dated 08.02.2017. The Corporate Debtor refunded ₹ 9 Lakhs only, balance principal amount of ₹ 25,90,180/- and interest ₹ 4,92,634/- total as on 07.03.2018 a sum of ₹ 30,82,814/- is due from the Corporate Debtor. We have considered whether this amount is come within the definition of Operational Debt under Section 5(21) of I B Code. The Respondent No. 1 has not supplied any goods or provided any services to Respondent No. 2, but paid an advance amount to Respondent No. 2 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 to Respondent No. 2 for supply of Sugar is not an Operational Debt................... 7. As the Hon'ble NCLAT have categorically laid down that an advance amount paid for supply of goods cannot fall within the category of 'Operational Debt' We, following the guidance available in their Judgment supra, hold that the claim of the Operational Creditor in the instant Application which is totally based on the advanced amount of ₹ 7,05,00,000/- paid towards supply of 5000MT Maize and as such, the instant claim cannot be treated as Operational Debt as per Section 5(21) of the IB Code, 2016 nor the Applicant herein be called as Operational Creditor as per Section 5(20) of the IB Code, 2016. Such being the case, the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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