TMI Blog2019 (3) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... th March, 2017 issued under Section 8(1). In the aforesaid background, as we find that there is pre-existence dispute prior to the issuance of the demand notice under Section 8(1), we hold that the application under Section 9 of the ‘I&B Code’ preferred by the Respondent was not maintainable. The impugned order dated 22nd August, 2017 is accordingly set aside. Adjudicating Authority appointing any ‘Interim Resolution Professional’, declaring moratorium, freezing of account, and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action, if any, taken by the ‘Interim Resolution Professional’, including the advertisement published in the newspaper calling for applications all such orders and actions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued on Respondent. Requisites along with process fee if not filed, be filed by 21st September 2017. If e-mail address of Respondent is provided by the Appellants, notice may also be issued through e-mail. Post the matter on 4th October, 2017. 3. After notice, when the Respondent appeared, just before the same, this Appellate Tribunal rendered a decision in Uttam Galve Steels Limited v. DF Deutsche Forfait AG Anr. ─ Company Appeal (AT) (Insolvency) No. 39 of 2017 in which this Appellate Tribunal by judgment dated 28th July, 2017 held that notice issued by an Advocate was not in accordance with the Regulations framed by the Insolvency and Bankruptcy Board of India and by order dated 16th October, 2017 set aside the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial health mainly due to your client's failure to provide raw materials which is your client's obligation under the terms of the agreement for the manufacture of the Q-Acid. That without the raw materials it was practically impossible to deliver the Q-Acid to your client. That out client's plant was designed in such a way that 80 per cent. of the equip ment at our client's facility was designed and utilised for manufacturing QAcid and without manufacturing Q-Acid our client was unable to make other products as it was not viable. Therefore our client had a total plant capacity of 32-35 MT for production of Q-Acid per month and a capacity of only 2-3 tonnes for production of other product and hence our client's plant is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make up for the losses by placing fresh orders on our client for the manufacture of Q-Acid and your client promised that it was not in a state to supply raw material to our client and that is would support our client in procuring raw materials from a third party. While clause 22(4) of the agreement specifically provided that in case any modification is made to the agreement the same shall be in writing to make such modification binding, till date no amendment was made to the agreement to record that your client was not capable of supplying raw material and our client had to incur fresh liability by approaching a third party to procure raw materials. Hence in view of no amendment to the agreement, till date it is your client's obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 2016 . This termination notice is patently illegal and is squarely in violation of clause 20(2) of the agreement which requires that the agreement may be terminated by either of the parties with a prior written notice of ninety (90) days, i. e., January 1, 2017. Therefore the loss incurred by our client from June, 2007 up to January, 2017 is ₹ 28,80,00,000 because of your client's failure to place purchase orders of 30 MT of Q-Acid per month and even for whatever orders were placed for little quantities of Q-Acid, not sup plying raw materials. 15. That said loss is calculated in accordance with annexure II to the agreement which specifically provides that the mark up (conversion) is ₹ 90 per kg and calculated till last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority appointing any Interim Resolution Professional , declaring moratorium, freezing of account, and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action, if any, taken by the Interim Resolution Professional , including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by Respondent under Section 9 of the I B Code is dismissed. Learned Adjudicating Authority will now close the proceeding. The Corporate Debtor (company) is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect. 10. The Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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