9911796707
TMI Blog2023 (8) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... g cited judgments. 3. Learned Counsel for the Appellant gave the background of the case and stated that he deals in iron ore and ferro alloy material and approached the Respondent, who was a supplier of Iron Ore Fines, for procurement of material. Learned Counsel for the Appellant stated that after negotiation and mutual agreement, the Appellant agreed to purchase 1,00,000 MT of Iron Ore Fines from the Respondent and the Sales Contract was executed on 22.02.2019 between the Appellant and the Respondent. 4. Learned Counsel for the Appellant submitted that in pursuance to said Sales Contract, the Appellant paid advance of Rs. 15 Crores to the Respondent in two tranches of Rs. 10 Crores on 25.02.2019 and Rs. 5 Crores on 06.03.2019. 5. Learned Counsel for the Appellant highlighted that the significant clause of the Sales Contract is Clause 12 i.e., to supply material within three months of the advance payment and delivery to be completed within 6 months. Learned Counsel for the Appellant further submitted that in terms of Clause 16 of the Sales Contract, the risk of loss passed from Respondent to Appellant upon material being loaded on to container/ truck at the buyer's side and sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that subsequently the Appellant filed an application under Section 9 of the Code before the Adjudicating Authority, which was rejected without going into details of the documents and the Adjudicating Authority merely considered the Respondent's submission regarding alleged pre-existing disputes. 10. Learned Counsel for the Appellant assailed the Impugned Order which is silent about any detailed finding regarding pre-existing dispute and only ground for rejection as recorded is that the Appellant has failed to provide documents establishing existence of default without substantiating the exact document which have not been produced by the Appellant before the Adjudicating Authority and this clearly reflects non-application of mind on the part of the Adjudicating Authority. 11. Learned Counsel for the Appellant, concluding his pleadings, requested to set-aside the Impugned Order dated 03.01.2023. 12. Per-contra, Learned Counsel for the Respondent denied all the averments made by the Appellant. 13. Learned Counsel for the Respondent submitted that the Sales Contract was indeed entered into between the Appellant and the Respondent on 22.02.2019 for supply of 1,00,000 MT of Iron Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores. (ii) Placing any truck for lifting material or even submitting any schedule for lifting material. (iii) Failing to take delivery from the Respondent's place. (iv) Completing the transaction in terms of the contract within the period of six months. 19. Learned Counsel for the Respondent submitted that the Adjudicating Authority has carefully gone into all the submission of both the parties and thereafter came to clear and valid conclusion about pre-existing dispute between the parties and rightly rejected application filed under Section 9 of the Code. 20. Learned Counsel for the Respondent concluding the arguments, requested to dismiss the Appeal with heavy cost. 21. This Appellate Tribunal notes that Sales Contract date 22.02.2019 is admitted fact. Similarly, the Respondent has accepted receiving advance payment of Rs. 15 Crores from the Appellant as per the Sales Contract. 22. Both the parties have referred to various clauses of the Sales Contract in support of their case and one of the issue between the parties seems to be clauses regarding as to who is responsible for giving delivering/ taking delivery of material. 23. It is therefore desirable to refer to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent to supply material within three months of the advance payment i.e., 05.06.2022 and in any case to complete the same within 6 months of the receipt of full advance of Rs. 15 Crores i.e., by 05.09.2022. The delivery was to be made by trucks or as mutually agreed which means any other modes of transport as mutually agreed like containers, trains, etc. 25. It is the case of the Respondent that in terms of the Clause 12 of the Sales Contract "goods were to be delivered by the Corporate Debtor to Operational Creditor at the ex-mines Odisha CD's mines where the Operational Creditor would place trucks". We have already noted that Clause 12 (vi) which states that "Delivery : By Trucks or as mutually agreed". It is nowhere mentioned that Operational Creditor/ Appellant would place truck as claimed by the Respondent during proceedings, as well in the Written Submission. Therefore, we find contention of the Respondent to be misplaced and far from truth as per written Sales Contract. 26. We also note that it is clearly stipulated that the title and ownership of the material shall stand transferred from the Respondent to the Appellant upon material loaded into container/ truck at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otiated price" was arrived by the Respondent. 32. Incidentally, we also note that the contract was to supply 1,00,000 MT of Iron Ore Fines "on truck or as mutually agreed", by the Respondent. Assuming, a truck can load 20 MT, around 5,000 trucks would be required to complete delivery for loading. Similarly, if it was to be loaded in train, about 25 Rakes (having 58 wagons in one Rakes/train) would be required. As per the Sales Contract, the delivery was to be completed preferably within three months and maximum six months from the date of receipt of Rs. 15 Crores advance. It is the case of the Respondent that he asked the Appellant vide his letter dated 07.08.2019, inter-alia, about delivery schedule. We note that the Sales Contract was signed on 22.02.2019 between the Appellant and the Respondent and the Appellant had paid of Rs. 10 Crores on 25.02.2019 and balance of Rs. 5 Crores on 06.03.2019. The three months normal period for delivery of material by the Respondent would have been over by 05.06.2019, much before alleged letter of the Respondent dated d07.08.2019. All these events indicates that perhaps the Respondent was not in a position to supply material and no attempt was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
