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TMI Blog2023 (8) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... emains no doubt that while the Appellant had paid the advance of Rs. 15 Crores but the Respondent has not been able to supply the material. 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 07.08.2019. All these events indicates that perhaps the Respondent was not in a position to supply material and no attempt was made by him in this regard. There are no cogent reason for rejecting the application under Section 9 of the Code and - the Impugned Order passed by the Adjudicating Authority cannot be agreed - Impugned Order is set-aside and the case is remanded back to the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be issued by the Respondent to the Appellant and the said cheque could be encashed by the Appellant upon non-supply of material by the Respondent. 6. Learned Counsel for the Appellant stated that on failure of the Respondent to supply the material within three months of the advance payments, the Appellant has been enquiring from the Respondent about shipment, who indicated that due to shortage of supply, the Respondent was not in position to supply the same and verbally suggested to terminate the Sales Contract dated 22.09.2019. Learned Counsel for the Appellant further stated, the Respondent refunded a token amount of Rs. 1.5 Cores between 01.07.2019 to 10.07.2019 and subsequently, despite several requests, the Respondent did not refund the remaining amount of Rs. 13.5 Crores. 7. Learned Counsel for the Appellant assailed the conduct of the Respondent who tried to create artificial disputes in his letter dated 07.08.2019, stating that the Appellant could take the delivery of material after arranging transport for lifting of material, which was completely false and against the written agreement according to which it was responsibility of the Respondent to transport the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 14. Learned Counsel for the Respondent stated that the price was provisionally agreed at Rs. 2000/- per MT and discount of Rs. 50/- per MT was to be given for advance payment and the final price was to be negotiated at the time of delivery. Learned Counsel for the Respondent accepted that he had received Rs. 15 Crores as advance in two tranches of Rs. 10 Crores on 25.02.2019 and Rs. 5 Crores on 06.03.2019 and therefore time to complete delivery in terms of agreement could be completed upto 05.09.2019. 15. Learned Counsel for the Respondent submitted that in the letter of the respondent dated 07.08.2019, the respondent requested the appellant to make balance payment of the goods and lift the materials from Orissa mines and the Appellant was requested to provide details of transportation, payment program of the balance amount of Rs. 5.95 Crores and also lift the materials. 16. Learned Counsel for the Respondent stated that the Appellant failed to hand over the Respondent the lifting program or make the balance payment or inform particulars of lifting of the goods or placing of trucks for lifting of goods from the facilities of the respondent and on 10.09.2019, after stipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from and against all former and other charges, encumbrances and liabilities, whatsoever made upon, done, executed or occasioned by the Seller or any person-or-persons claiming under or in trust for the Seller and free and clear from and against all manner of encumbrances, trust, liens, encumbrances, charges and liabilities of any nature whatsoever made upon done executed or occasioned by the Seller. 11. The Buyer shall remain free and clear and freely and clearly and absolutely acquitted, exonerated, discharged and released by the Seller and well and sufficiently saved, defended, kept harmless and indemnified from and against all manner of charges, hypothecations, claims, demands, liens, lispendens, attachments, encumbrances and liabilities whatsoever made, executed, occurred, occasioned or knowingly suffered to the contrary by the Seller. 12. The said goods shall be delivered by the Seller to the Buyer within six months from the date of advance payment of Rs. 15,00,000,00 (Rupees Fifteen Crores Only). SPECIFICATIONS OF THE SAID GOODS i. Material : IRON ORE Fines ii. Quantity : 100,000 Metric Tons iii. Special Specifications : Fe 58% Typical SiO2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 27. We also note that the Appellant complied with various clauses of the Sales Contract especially regarding advance payment which the Appellant performed by making two tranches of payment of Rs. 10 Crores on 25.02.2019 and Rs. 5 Crores on 06.03.2019. Upon his making advance payment, the responsibility was on the Respondent as Seller of the material to arrange for the trucks, load the materials on to trucks and deliver the same at the site of the Appellant and then only the liability and risk would have transferred to the Appellant as Buyers of the goods. 28. From the various documents made available including the Sales Contract, we have no doubt that while the Appellant had paid the advance of Rs. 15 Crores but the Respondent has not been able to supply the material. 29. The averments of the Respondent that it was for the Appellant to arrange for the trucks and send the delivery programme along with the balance payment to the Respondent, is not convincing and looks like after thought to make out for non-delivering of material as well as not to refund back advance kept by the Respondent to the Appellant. 30. It is also case of the Respondent that he called upon the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 16. With respect to the default, there are not enough documents on record which shows that the Corporate Debtor failed to supply the material, rather as per the letter dated 07th August, 2019 of the Corporate Debtor it reflects a failure on the part of the Operational Creditor. Hence, CP (IB) No. 1741/KB/2019 is rejected. Needless to say that the Operational Creditor is at liberty to resort to other remedies that may be available to it under any other law. (Emphasis Supplied) We are unable to appreciate as what documents are being referred to in the Impugned Order to show that the Corporate Debtor/ Respondent failed to supply materials. Similarly no application of mind on the part of the Adjudicating Authority is found in the order which states that :- rather as per the letter dated 07th August, 2019 of the Corporate Debtor it reflects a failure on the part of the Operational Creditor. We do not find any cogent reason for rejecting the application under Section 9 of the Code and we are not in position to agree with the Impugned Order passed by the Adjudicating Authority. 34. Therefore, the Appeal succeeds. The Impugned Order is set-aside and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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