9911796707
TMI Blog2022 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor is not in a position to clear its legal debt and committed default. The claim is not in any way barred by limitation as will appear, inter alia, from the invoices and repeated acknowledgements of liability by the Corporate Debtor, which is undisputed - the Operational Creditor has a valid claim against the Corporate Debtor, which the Corporate Debtor has failed to discharge, by committing default which is proved on record. The Corporate Debtor has failed to prove any pre-existing dispute or any payment having been made to the Operational Creditor, within 10 days of receipt of the Statutory Notice under Section 8 of the Code. The application filed by the Operational Creditor under Section 9 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, is hereby admitted - Moratorium declared. - C. P (IB) No. 56/KB/2020 - - - Dated:- 29-6-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) Counsels appeared For the Operational Creditor : Mr. Sarvapriya Mukherjee, Adv. Mr.Arnab Sardar For the Corporate Debtor Mr. Shaunak Mitra, Adv. Mr. Patita Paban Bish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 06/09/2016 and the notice was delivered to the Corporate Debtor on 15/07/2019 (Page-16). 7. The Corporate Debtor replied to the Demand Notice vide its letter dated 15th July, 2019. In the reply to the Demand Notice, the Corporate Debtor has admitted the liability and stated that the Corporate Debtor shall make the payment to the Operational Creditor upon receipt of its payment from ArcelorMittal Temirtau . 8. The Operational Creditor has enclosed with the petition, the following documents: - i. Purchase Order dated 22.04.2016 ii. 4 (Four) Invoices raised by the Operational Creditor iii. Proof of delivery of Goods iv. CT-1 Forms for export of goods v. Minutes of meeting dated 16/11/2019 vi. Copy of the emails correspondences between the Operational Creditor and Corporate Debtor. vii. Demand Notice dated 09/07/2016 along with the postal receipt and track report 9. In reply to the above, the Corporate Debtor denied and disputed that a total amount of Rs. 35,74,679/- raised in the 4 (Four) invoices was due and payable under the Work Orders. It is stated that the claim is barred by limitation. There is no record of any default wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was never any privity of contract between Arcelor Mittal Temirtau and the Operational Creditor. The payment terms as contained in the Purchase Order dated 22.04.2016 was solely between the Applicant and the corporate debtor and only specified that 100% of the payment would be made against the Letter of Credit within 60 days from the date on which the bill of lading was issued or the airway bill date. There is no condition which stated that the payment would only be made by the Corporate Debtor on receipt of payment by them from Arcelor Mittal Temirtau. There has been a clear acceptance on the part of the corporate debtor that the goods have been supplied to it. There has been no denial of the amount owed by the Corporate Debtor, and instead they have responded to the Operational Creditor s emails and notices by stating that the repayment is contingent upon receiving the amount from ArcelorMittal Temirtau (their customer). The purchase order placed on the Operational Creditor did not have any such clause making the repayment contingent. In fact, even at the meeting dated 16.11.2016 wherein it was agreed by the Operational Creditor that the repayment will be made on recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable by it to the Operational Creditor. 19. It is submitted that in reference to the Affidavit in Reply filed by the Corporate Debtor and the Rejoinder by Affidavit filed by the Operational Creditor, it is clearly mentioned that the Operational Creditor has neither been involved in any way with M/s. Arcelormittal Temirtau nor was a party in the suit being CS/2/2017. All the transactions have been directly between the Corporate Debtor M/s Lindsay International Private Limited and the Operational Creditor. 20. Thus, by virtue of the unconditional withdrawal of the suit by the Corporate Debtor, there cannot be any justification to refuse to pay the admitted amount to the operational creditor. The Corporate Debtor has failed to make payment of the confirmed and undisputed outstanding dues/debt of Rs.35,74,679/- only to the Operational Creditor and as evident from the facts and circumstances, the Corporate Debtor is not in a position to clear its legal debt and committed default. The claim is not in any way barred by limitation as will appear, inter alia, from the invoices and repeated acknowledgements of liability by the Corporate Debtor, which is undisputed. After going throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii. The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii. Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of the corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. The Operational Creditor has not proposed name of any Insolvency Resolution Professional. Therefore, as per the provisions of Section 16(3) (a) of the IBC, so, we appoint Mr. Milan Sachindra Nath Chatterjee, IRP having Reg. No. IBBI/IPA- IBBI/IPA-001/IP-P01027/2017-18/11720, Mobile No. 9836770 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
