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2019 (3) TMI 250 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process (CIRP) - existence of relationship as between the petitioner and respondent being that of an Operational Creditor and a Corporate Debtor as defined under the provisions of IBC, 2016 - Breach of agreement - HELD THAT:- Operational Creditor should have supplied goods or rendered any services to the Corporate Debtor. However, in the instant case, even as per the agreement which has been entered into as between the parties and which was also referred at the Bar during the course of arguments on maintainability annexed as Annexure-5, wherein, it is seen that the scope of agreement as given in Clause-I is to be effect that Krishna Phoschem Ltd. agrees to sell ‘H Acid’ and buyers agrees to purchase these products as per the quantity agreed hereunder in a month. The Krishna Phoschem Ltd. has been defined as a ‘seller’ in the sale purchase agreement and Colorant Ltd. has been defined as a ‘buyer’ under the said sale purchase agreement dated 21st day of August, 2017. The main grievances of the petitioner is that the seller of the agreement, namely, the Corporate Debtor has not abided to the terms and conditions of the agreement in the supply of ‘H Acid’ as contracted under the agreement. Under the circumstances, there is a breach of the said agreement dated 2 August, 2017 which had forced the buyers, namely, the petitioner to purchase its requirements of ‘H Acid’ from the open market at almost twice the price as agreed between the parties and the claim is also in relation to the difference in price which the petitioner was required to pay. In view of the breach of the said agreement and it is thus seen that the claim is more by way of claim for damages arising out of breach of agreement as entered into between the parties. This Tribunal is not convinced that there exists as between the petitioner and the respondent, a relationship of an Operational Creditor and Corporate Debtor and that there is an ‘Operational Debt’ of which a default has been committed. This Tribunal is constrained therefore to dismiss this petition.
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