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TMI Blog2022 (4) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... ount was paid on behalf of Panoli Product Private Limited for the purpose of making the payment to the Operational Creditor. Although, one payment appears to have been made by Shri Vaibhavi Logistics to Operational Creditor, but subsequent two payments of amounting U.S.D 3441.00 and U.S.D 3330.00, were made by the Corporate Debtor to Operational Creditor, which proves that the payments were to be made by the Corporate Debtor to the Operational Creditor. Even otherwise, in such like circumstances, the 'principle of estoppel' comes into play as above said two payments made by the Corporate Debtor to the Operational Creditor directly. Therefore, the Corporate Debtor is hereby estopped to allege that the payment were to be made by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to initiate CIRP against the Respondent company/Corporate Debtor (for brevity Corporate Debtor) M/s. Panoli Products Private Limited, under Section 9 of IBC 2016 for the alleged default on the part of the Corporate Debtor having an outstanding balance of USD 349,677.04. The details of transactions leading to the filing of this petition as averred by the applicant are as follows:- a. In 2014 the operational creditor had lease its tanker containers under four lease agreements to the corporate debtor. In terms of the lease agreement, the operational creditor lease out tanker containers to the Corporate Debtor and issued delivery notes dated 22.04.2014, 03.03.2014, 12.05.2014, 12.07.2014 and 26.08.2014. b. Accordingly, the operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant has claimed USD 3,49,677 as principal amount and USD 1,74,939. b) It is stated that the penalty component claimed by applicant is not maintainable under Section 9 of the Code, if there is no such clause in the agreement. c) It is submitted that an addendum dated 10.07.2014 to the original contract was signed between the operational creditor, corporate debtor and Shri Vaibhavi Logistics and it was agreed between the parties that the payment to the operational creditor shall be made by Shri Vaibhavi Logistics on behalf of the Corporate Debtor in respect of all invoices that are due and payable to the operational creditor. Therefore, the corporate debtor has no obligations to make payment to the operational creditor and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present application satisfies all the requirement for initiation of CIRP against the Corporate Debtor, and the corporate debtor by acknowledging its liability has also made two payments on 30.07.2020 and 29.12.2020 of USD 3441 and USD 3330 respectively. c. It is submitted that amount of interest claimed is well agreed by the parties which is evident from the invoices and the invoices were never disputed by the corporate debtor. 4. Heard, record perused. The Corporate Debtor placed reliance on addendum dated 10.07.2014 and argued that the entire liability was that of Shri Vaibhavi Logistics, therefore, the Corporate Debtor cannot be made liable for the payment stated above. No doubt there is addendum dated 10.07.2014 executed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vaibhavi Logistics. 6. Moreover, as per addendum, the payment were even otherwise to be made on behalf of Corporate Debtor itself. The word 'on behalf of clearly indicates that the ultimate responsibility to pay the same was that of the Corporate Debtor as there is nothing on the record to prove that the Corporate Debtor was absolutely discharged from its liability. The Corporate Debtor failed to prove on record that all such payments as shown in the ledger were actually made by it only for the purpose of making the payment to the Operational Creditor. In fact, those payments appeared to be made with respect of some freight charges apart from other credits debits. Therefore, in the absence of any convincing evidence on record tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to make the payment to the Operational Creditor with respect to the invoices raised. Accordingly, the present petition stands admitted. 8. The applicant has not proposed the name of an IRP, therefore, this bench appoints Mr. Vikram Sharma as the Insolvency Resolution Professional of the corporate debtor. The registration number of the IBBI/IPA-001/IP-P02533/2021-2022/13876 and email id [email protected]. IRP above named is appointed subject to the condition that no disciplinary proceedings are pending against him. The specific consent is required to be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and made disclosures as required under IBBI (insolvency Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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