9911796707
TMI Blog2023 (12) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... e Insolvency and Bankruptcy Code, 2016, (Code) against M/s. Nizam Energy Private Limited (Corporate Debtor) has been dismissed by the Tribunal (National Company Law Tribunal, Division Bench -II, Chennai) vide its Order dated 27.04.2021. 2. In brief, the Appellant is engaged in the business of import and trading of coal whereas the Corporate Debtor is having its plant near Tuticorin, Tamil Nadu. The Appellant has been supplying coal to the Respondent either as high sea sale or sale after import. According to the Appellant, the coal is supplied with or without paying TCS (by submitting Form 27C) and the payment of consideration with respect of it, is made sometimes through cheques and sometimes through RTGS. According to the Appellant, the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that as per the Purchase Order, the Appellant was required to make sales Ex-V.O. Chidambaranar Port at Tuticorin i.e., the coal was required to be handled and loaded into trucks of the Respondents and the same was duly honoured by the Appellant by making supplies of 1536.44 MTs of coal on 08.01.2018 (60.36MT), 09.01.2018 (57.10MT), 10.01.2018 (23.42MT), 17.01.2018 (78.68MT), 21.01.2018 (40.44MT), 23.01.2018 (135.90MT), 24.01.2018 (61.14MT), 25.01.2018 (77.82MT), 27.01.2018 (53.70MT), 30.01.2018 (123.44MT), 31.01.2018 (51.06MT), 02.02.2018 (214.52MT), 03.02.2018 (203.34MT), 05.02.2018 (55.48MT), 06.02.2018 (26.10MT), 07.02.2018 (144.82MT), 09.02.2018 (103.24MT) & 10.02.2018 (25.88MT). 4. It is further alleged that the supply or delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 9, for the first time, alleged to have raised objection that the goods were not delivered, therefore, there is no question of the amount being pending against the Respondent which may be termed as a `debt' and of non-payment of the same could be termed as a `default'. 8. The Learned Tribunal has though referred to the list of documents filed by the Appellant with the Rejoinder etc., but has rejected the Application only on the ground that the Appellant has failed to prove the lorry details of the consignment, delivery challan in proof that the goods were actually delivered to the Respondent. 9. Counsel for the Appellant has vehemently argued that the Tribunal has committed an error in dismissing the Application without ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactions having been taken place between the Parties have not been discussed at all by the Learned Tribunal much less the fact that if no contest is made till the filing of the Petition, whether it can be raised for the first time in the Reply filed to the Application under Section 9 is also a question which requires to be answered. 13. Thus, in view of the aforesaid facts and circumstances, we are of the considered opinion that this is one such case in which interference is required for the purpose of looking into the entire evidence by the Tribunal and recording a finding thereafter as to whether the Application has to succeed or to fail. 14. The Appeal is thus allowed. The Impugned Order is set aside. The matter is remanded back to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
