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TMI Blog2021 (11) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... , is Dealer of Coal since last several years. The PAN No. of Kishan Kumar Daga is AHQPD2277B and GSTIN is 18AHQPD2277B1ZG. 4. The Respondent/ Corporate Debtor, namely Siang Tea and Industries Private Limited, having Unit-- Donyi Polo Tea Estate was incorporated on 26th November, 1986 with CIN- U01132AR1986PTC002622. The Registered Office of the Corporate Debtor is situated at: Sec-E, Itanagar Papum Pare Agartala 791111 IN is in the business of manufacturing and trading of tea. A copy of the Master Data along with Certificate of Incorporation of the Corporate Debtor has been annexed. 5. The Authorized Capital of the Corporate Debtor is Rs. 2,00,00,000 (Rupees Two Crores only) and Paid-up Share Capital is Rs. 1,80,59,400 (Rupees One Crore Eighty lakhs fifty nine thousand four hundred only). 6. It is submitted that the Operational Creditor supplied Coal to the Corporate Debtor from 2nd April, 2018 to 31st August, 2019 amounting to total INR 1,32,38,937 (Rupees One Crore thirty two lakhs thirty eight thousand nine hundred thirty seven only). 7. It is submitted that petitioner is in receipt of INR 12,60,196.00 (Rupees Twelve Lakhs Sixty Thousand One Hundred Ninety Six only), and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .00 2. Interest calculated up to 25/01/2021 @ 15% p.a. for delayed period of payment 31,98,774.00 3. Amount Received till date 12,60,196.00 Total Claim made 1,51,77,515.00 14. It is further stated that Mr. Arun Kumar, Cost Accountant is authorized to represent the case before the National Company Law Tribunal. The copy of the Power of Attorney is annexed. 15. The Petitioner submits that the Corporate Debtor has defaulted in payment of the genuine debt. The Corporate Debtor has purposefully failed and neglected to honor the commitment towards the Operational Creditor even on service of the Notice under the Insolvency and Bankruptcy Code, 2016 and therefore, it is prayed before the Hon'ble Bench to pass an appropriate order to commence the Corporate Insolvency Resolution Process against it. 16. The Petitioner craves leave to provide additional documents as may be required to substantiate the claim made hereunder by it against the Corporate Debtor and to amend the Petition, if the same is required in future. 17. In view of the facts mentioned above, the Petitioner has prayed for the following relief(s):- a. To pass appropriate order to commence insolvency as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. These were difficult times for everyone. There may be some chance now, with somewhat improved conditions, for the plantations to come back to life, provide employment to large number of workers and to generate economic activity for its feeder organizations like that of the Applicant. But it is definitely not the time to kill the goose by bankrupting the companies like the Respondent one that would lay the golden eggs for all of them and contribute to the economic wellbeing of the community and nation. 18.v It is submitted that the Respondent Company is committed to fulfill its obligations to all of its stakeholders and has always paid their rightful dues, including those of the Applicant. However, it is submitted that the Applicant has failed to produce any supply order from the Respondent for the goods in question that he claims to have supplied to the Respondent, nor has the Applicant placed on record any document to prove that the alleged goods were actually delivered to the Respondent. The Respondent categorically states that neither the supply of goods nor the amounts as claimed as due and payable by the Applicant were ever accepted to be correct. These continue to be dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o: a. Dismiss the Application filed by the Applicant under Section 9 of the IBC with exemplary costs, in view of the above contentions and submissions made by the Respondent. b. Pass any such other order(s) as this Hon'ble Tribunal deem fit and proper in the present facts and circumstances of the case. 19. The Operational Creditor has further advanced the argument to the reply filed by the Corporate Debtor that the submissions of the CD are misleading, devoid of merit, hence vehemently denied. It is submitted that the Operational Creditor has issued various GST Invoices along with E-way bill for the supply of coal to the CD which was duly acknowledged by the CD vide Page no. 43 to 174 of Form no. 5 of the instant application. The goods have been supplied to the Corporate Debtor after the representatives of the Corporate Debtor themselves satisfied with the quantity and quality of the goods while taking supply of goods from the Operational Creditor. Therefore, the Corporate Debtor cannot question the amount due to the Operational Creditor at this juncture, the Corporate Debtor is liable to pay the legal dues to the Operational Creditor along with interest. Furthermore, if the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der IBC. (b) It is respectfully submitted that there was no 'occurrence of default' in the present case. A default can be said to occur only after expiry of the time period agreed to by the parties within which the payment is to be made, giving rise to a right to sue. For example, if it is agreed between the parties that payment is to be made within 30 days of supply of goods, the earliest a default can be said to occur is on expiry of 30 days of supply of goods. Further, in commercial matters and contracts, rights and liabilities of the parties are governed by mutually agreed conditions of their agreements / contracts. It is for the parties to mutually decide as to whether there should be a time period within which the payment has to be made; if, it is mutually agreed to have a time period for payment, for what duration should it be. If no such time limit or period for making the payment is specified, a default cannot be claimed to have suddenly occurred at any arbitrary and unilaterally decided date chosen by one party. (c) It is stated that, in the present case, there was no contract or mutually agreed time period within which the Respondent was required to make a payment. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Company, which is a tea estate and critically reliant on a large number of plantation workers coming from Assam, were the worst affected. Realizing the impossible situation that the industries were in, the Government and the RBI put a moratorium on seeking recovery of debts from the industries. Each action under IBC was suspended for the period between 25th March 2020 and 25th March 2021 by amending the IBC vide notifications dated 5.6.2020, 24.09.2020 and 22.12.2020. The rationale and the need for this suspension were noted in the notification dated 5.6.2020 as follows: "AND WHEREAS COVID-19 pandemic has impacted business, financial markets and economy all over the world, including India and created uncertainty and stress for business for reasons beyond their control" AND WHEREAS it is considered expedient to exclude the defaults arising on account of unprecedented situation for the purposes of insolvency proceedings under this code." AND WHEREAS it is considered expedient to exclude the defaults arising on account of unprecedented situation for the purpose of insolvency proceedings under this code." Yet, in spite of a horrendous situation being faced by the Respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 (which is claimed by the applicant in his application to have been delivered to the Respondent on 02.02.2021), or at any other time between 25th Mach 2020 and 25th March 2021. No such default would ever be actionable under the IBC. For referral convenience, the notifications dated 5.6.2020, 24.9.2020 and 22.12.2020 are annexed. (f) Without prejudice to all of the above, and without conceding any of the claims of the applicant, it is further submitted by the CD that in the absence of any contract, supply order or any other document providing details of what were the agreed quantities of goods to be supplied, or what were to be their quality and specifications, or what were the agreed rates for those goods, the amount of debt claimed by the applicant remains un-determined and disputed. The application merits dismissal in limine on this count too. (g) That the Respondent Company is an on-going and flourishing concern. It is respectfully submitted that the initiation of insolvency proceedings against a solvent entity like the Respondent Company is against the scope and intent of the IBC. (h) It is submitted that the Insolvency & Bankruptcy Code, 2016 was enacted with the obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wellbeing of the workers, the Community and the Nation. 6) The papers, documents, invoices submitted by the Applicant have been perused by us but the Applicant/OC has not submitted any paper/contract or other proof about the due date of payment of the goods supplied. Even not a single invoice, out of 97 invoices raised contains any due date of payment. (7) The CD has been paying as and when apparently funds are available with it. The payment is made in a continuous or rolling manner even the Petitioner has confirmed that it has received payment of Rs. 1,50,000.00 from the CD on 07/08/2021. (8 ) Due date has not been mentioned in the invoice .No such agreed time period is claimed in the application and no contract or other document to that effect is produced by the OC during the proceedings. (9) The Applicant has issued demand notice under Section 8 of the IBC upon the CD on 25.01.2021 during severe Pandemic Period when the notification of Govt. of India/RBI is clear that no proceedings under Section 7, 9 and 10 of I&B Code can be initiated for the default occurs during Covid Pandemic period between 25.03.2020 -to 25.03.2021. (10) One of the necessary preconditions for ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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