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TMI Blog2022 (6) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner/Operational Creditor would directly pay the supplier of Sea Foods/Shrimps etc. who would, in turn, deliver the goods to the Respondent/Corporate Debtor. Insofar as the supply of these goods are concerned, it is covered by Bill of Supply and Goods Delivery Receipt. For the purpose of this particular petition, we would refer to Bill of Supply dated 24.10.2018 at Page 59 for which the Goods Receipt Invoice at Page 60. The Respondent/Corporate Debtor acknowledged the receipt of the goods in good condition signed and sealed by the Respondent/Corporate Debtor. There are other bills of supply which are also marked which is not in dispute. 2. A perusal of these documents which are in substantial numbers, clearly establish that the goods were sold and delivered at the behest of the Operational Creditor to the Corporate Debtor. In the course of the business transaction after paying substantial amounts towards goods which were delivered to the Respondent/Corporate Debtor, payments were not forthcoming which forced the Petitioner/Operational Creditor to seek various remedies for recovery of the amount including Section 138 of the Negotiable Instrument Act, 1881 proceedings against the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insisting for repayment of the amount availed in credit at the rate of 36% which I could ill-afford (to pay)". 34. This argument clearly, therefore, makes a partial admission of the entitlement to the Claimant. The Counsel will not make such a clear admission that he made an attempt also to point out to me that the situation was such that the parties knew that the Respondent was actually availing of loan credit for sale of 'chilled shrimps' to foreign buyers and that was why the S & D Contract itself provided that the Claimant had a right to appropriation of the subsidy availed by the Respondent Company for the amount due to itself. The Counsel took me through R17 that showed a downward swing in the turnover and how the industry was fully dependent and the withdrawal of subsidy by the Central Government resulted in erosion of the turnover and consequently of their own financial stability form the total turnover of Rs. 75.30 crores in 2015-16 to a hike of Rs. 131.14 crores in 2016-17 and spiked to Rs. 135.95 crores in 2017-18, it registered small decrees to Rs. 112.44 crores in 2018-19, only to plummet to just Rs. 12.12 crores in 2019-20. While the Claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that extent in the other cases also. Admittedly, after this award was passed, the Respondent/Corporate Debtor entered into a Memorandum of Compromise Settlement dated 30.06.2021 in Annexure at Page 114 which would be relevant for the present case in para 7, 8, 9 at page 116, 117, 118 & 119 as follows: "7. With a view to seamlessly implement the settlement terms, it is agreed between the Parties that the current Memorandum of Compromise Settlement signed by the Parties be recorded before the Hon'ble NCLT, Chennai after the payment of the first instalment. It is explicitly agreed between Parties that Samunnati shall have the right to reinstate their original application filed with the NCLT in case of any delay/default on the part of SR Marine and/or Guarantors in honouring the commitments under the current Memorandum of Compromise Settlement and that SR Marine/Guarantors shall not raise any objection of whatsoever nature before the NCLT. 8. Further, it is agreed between the Parties that Samunnati shall withdraw all the Sec. 138 cases filed under NI Act against the guarantors with the Metropolitan Magistrate Court, Saidapet, Chennai, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not numbered till date but it is in the SR stage for almost one year. Since the settlement was not honoured by the Respondent/Corporate Debtor, the Petitioner/Operational Creditor was once again forced to file this petition on 15.12.2021. Prima facie, the debt and default has been established by the Petitioner/Operational Creditor by referring to the various marine goods supply bills which were duly acknowledged by the Respondent/Corporate Debtor and also by the award in Para 32 & 33 mentioned above wherein the Respondent/Corporate Debtor clearly admitted the receipt of goods for export. It is another matter that the Respondent/Corporate Debtor was unable to make the payment as undertaken. The question is that in subsequent event viz., filing of the counter claim, both parties entered into an arbitration award and that award crystallized the amount due and payable under the supply of goods and Memorandum of Compromise settlement has been arrived by the Respondent/Corporate Debtor in favour of the Operational Creditor herein. It is the nature of goods sold and delivered for which the amount due and payable has not been paid by the Respondent/Corporate Debtor, despite several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore mere filing of the petition under Section 34 over and above the compromise is a sham. It does not amount to the continuation of arbitration proceedings because the settlement concludes the award. The disputes ends then and there. Para 9 of the Memorandum of Compromise Settlement records the withdrawal of the arbitration proceedings. It is an undertaking which has to be given by the Respondent/Corporate Debtor and not by the Petitioner/Operational Creditor. Therefore the case of "K. Kishan vs. Vijay Nirman Company (P) Ltd." will have no relevance in view of the Memorandum of Compromise Settlement entered into between the parties. The Senior Counsel Mr. E. Om Prakash for the Respondent pleaded that the NCLT proceedings is not a proceedings for recovery of the amount. Is it no doubt true but admittedly, Section 9 application has been filed by the Petitioner/Operational Creditor for initiating CIRP proceedings against the Respondent/Corporate Debtor to declare the Respondent/Corporate Debtor as insolvent in view of continuing debt and default. Insofar as the recovery of the amount, other proceedings are available under law and are pursued. Therefore, none of the plea of the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreclose, recover or enforce any security interest created by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. Explanation. -For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license or a similar grant or right during moratorium period; 11. However, during the pendency of the moratorium period in terms of Section 14(2)(2A) and 14(3) as extracted hereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X
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