TMI Blog2019 (5) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... period transactions are not treated on the same footing. The goods services supplied during CIR period has to be fully paid in order to carry on the business of the Corporate Debtor as a going concern. In that connection the Resolution Professional and Committee of Creditors are fully empowered to place an order for supply of goods against the consideration for those goods. In the present case it has not been disputed that the petition was admitted on 05.09.2017 and the Purchase Order was placed thereafter on 16.07.2018. Obviously, this was a transaction post admission of the petition and a payment for a sum of ₹ 34,47,075/- was made which was inclusive of packing charges, IGST, etc. - Clearly after accepting the amount it got th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised the issue in the instant application filed under section 60(5)(c) read with section 35(1) of IBC, 2016, with a prayer for issuance of directions to the non- applicant Respondent Electro Magnetic Industries (for brevity Non-Applicant-Respondent) to release the goods forthwith lying with it in term of Purchase Order No. EEPL/PO1541045 dated 16.07.2018. 2. Before embarking upon the legal controversy raised in the instant application, few material facts may first be noticed. In respect of the Corporate Debtor C.P.No. IB- 160(ND)/2017 was admitted on 05.09.2017 thereby triggering the Corporate Insolvency Resolution Process under section 9 and an Interim Insolvency Resolution Process under section 9 and an Interim Resolution Professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent even before the admission of the petition for CIRP on 05.09.2017. 5. The goods were manufactured by Non-Applicant-Respondent which were duly inspected by the representative of the end user being Sanjay Gandhi thermal Power Project, Madhya Pradesh Power Generating Company Ltd. A Material Dispatched Clearance Certificate bearing No. 07-09/MPPGCL/R M/SGTPS/1609 dated 03.11.2018 was also issued (Annexure A-5). The payment was to be made by the Corporate Debtor against the proforma invoice before dispatch of the goods. Accordingly, the Non-Applicant-Respondent raised proforma invoice No.00476 dated 12.11.2018 raising a demand of ₹ 34,47,075/- (Annexure A-6). The company in liquidation arranged a demand draft for the aforesaid amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Consignor due to some outstanding payments from the Corporate Debtor. 6. It has not been disputed that there was outstanding payment payable by the company-in-liquidation in respect of the period preceding the date of initiation of CIR process which is obviously before 05.09.2017 and the Non-Applicant-Respondent have failed to file any claim in that regard despite the issuance of Public Notice inviting the claims. 7. The averments made in the application further suggests that the material was to be supplied to State Govt Project -Sanjay Gandhi Thermal Power Project, Madhya Pradesh Power Generating Company Ltd. and inspection had been undertaken by authorities which have issued material dispatch clearance certificate. The no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing CIR period. The pre-CIR period payments are to be part of the claims made before the Resolution Professional whereas the post CIR period transactions are not treated on the same footing. The goods services supplied during CIR period has to be fully paid in order to carry on the business of the Corporate Debtor as a going concern. In that connection the Resolution Professional and Committee of Creditors are fully empowered to place an order for supply of goods against the consideration for those goods. 10. In the present case it has not been disputed that the petition was admitted on 05.09.2017 and the Purchase Order was placed thereafter on 16.07.2018. Obviously, this was a transaction post admission of the petition and a payment f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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