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2019 (7) TMI 1669 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARHCIRP process - Release the Intervener’s raw material/stock lying at the Corporate Debtor’s plant immediately - direction to Corporate Debtor/RP/COC to accept the Difference Amount and add the same to the admitted claim amount of the Intervener - main contention of the Resolution Professional is that the Intervener had to discharge its obligation, as committed vide Clause 11.2 of the said Agreement, before demanding the return of goods - HELD THAT:- There is no ambiguity that once the stock-auditor had earmarked and affirmed the ‘ownership’ of the Applicant, then, the ‘Explanation’ annexed to Section 18 IBC is to be applied in this case as well. As far as the basis for demanding ₹ 2.30 Crore, a calculation chart is available as an Annexure of a pleading wherein offered the details of expenses incurred for the month of May, June, July and August 2019 amounted to ₹ 3,57,87,366/- and total receipts on this account amounted to ₹ 1,34,60,644/-, thus the balance of ₹ 2,23,26,722/- is the amount for claim by the Resolution Professional. The summum bonum is that whenever the issue of set off or cross- claims is to be settled the first step expected to be examined is the nexus between the two rival claims. As far the facts of the present case are concerned, the nexus between the goods supplied and expenditure directly incurred in respect of those very goods supplied can only be appropriate for adjustment against each other. Although the calculation is on record, as also referred supra, but both the sides are at liberty to verify the nexus and can revise the figures of cross-claims. Needless to mention again, to carry out the swapping of stock versus payment a direction is already incorporated in this Order. The main objection of the Resolution Professional is that the expenditure incurred for protection of goods whether to be borne by intervener or to be treated as a CIRP cost. At this juncture, it is also worth to place on record that none of the party has made out a case that the goods in question be declared as essential goods or services. Therefore, it cannot be held that the intervener should not stop or terminate or suspend the supply of raw material. Applicability of Section 18(1)(f) - HELD THAT:- The Intervener is required to reimburse to the Resolution Professional the Pre-CIRP cost incurred amounting to ₹2.30 Crores( apx.) being an expenditure agreed upon as per Clause 11.2 of the said Agreement. On one hand the said payment be transferred by the Intervener to the account of the Corporate Debtor, on the other hand, the Resolution Professional is hereby directed that the delivery of stock be executed by handing over to Intervener or its representative. Expenditure of transportation etc., if any, be borne by the Intervener. It appears that there should not be any misunderstanding among the parties about the impugned stock, because the same is claimed to have been earmarked by the stock auditor. The instant application filed by the Intervener is partly allowed.
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