TMI Blog2020 (6) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... UMAR B, MEMB R (TECHNICAL) For Operational Creditor: F.S. Dhiman And S. Shivram, Counsels For Corporate Debtor: Subhang P. Nair, Counsel ORDER PER: ANIL KUMAR B, MEMBER (TECHNICAL) 1. This Application has been filed to initiate Corporate Insolvency Resolution Process against the Corporate Debtor as per the Provisions of Part II of the Insolvency and Bankruptcy Code, 2016 ( I B Code-2016 ) in the format as prescribed under Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as AAA Rules ) by the Applicant in the capacity of the Operational Creditor viz., Cellpap BV against the Corporate Debtor viz., M/s. Oren Hydrocarbons Private Limited. The Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof of sending notices and its deliveries and also filed an affidavit under Section 9(3)(b) of I B Code. 4. Part V of the Application contains list of the documents in order to prove the existence of the Operational Debt and amount in default, which are mentioned below; (i) Copies of Past E-mails between the parties. (ii) Invoices, Certificate of Origin, Bill of Lading, Certificate of Analysis, Certificate of Inspection (iii) Packing List (iv) Demand Notice dated 12.06.2019 5. The Operational Creditor is a foreign company engaged in the business of trading paper, pulp and secondary fibers and supply paper and board for printing and packaging to customers around the world, and also provides raw materials to paper mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is due from the Corporate Debtor. The Operational Creditor had sent several e-mails from June 2018 to November 2018 and also requested orally on several occasions to release the payment but no reply was received. As the Corporate Debtor was unable to pay its total due amount, despite several reminders and e-mails, the Operational Creditor having been left with no other option but to approach this Tribunal claiming the payment of USD 237044.75 which comes to around ₹ 1,68,77,586. It includes principal amount of USD 1,91,266.90 i.e. ₹ 1,36,18,203.3 as well as interest upto 24.06.2018 USD 17,087.81 viz. ₹ 12,16,652.07 and cost of collection USD 28,690.04 viz. ₹ 20,42,730.85. The claim was made by the Operational Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and deserves to be dismissed for the reasons as stated below. The allegations and averments contained in the Application against the Respondent are farcical, frivolous and vexatious. b) the present Application is liable to be dismissed at the very outset because the Applicant has failed to produce any proof of delivery of the goods to the Respondent where the goods were never delivered by the Applicant to the Respondent. The Respondent, not having accepted delivery of the goods, can not be held liable to pay the claimed amounts in the instant case. Further, the Applicant has violated the terms of contract, entitling the Respondent to refuse acceptance of the goods and payment: i) the Applicant has failed to make deliveries within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim i.e. Invoices, Bill of lading, Quality Reports, Certificate of origin in the original petition filed under Section 9 of IBC 2016. 14. With regard to Para No.3 of the Counter Statement, the Petitioner had filed a series of emails shared prior to the shipment of the consignment, during the consignment and also after the goods were received and accepted by the Respondent without any demur. The documents such as 'Invoice' and 'Bill of Lading' are sufficient to prove the claim of the amount from the Respondent. The allegation that the Respondent did not accept the delivery of goods made by the Petitioner is merely an afterthought only in order to avoid making payments that legitimately due to the Petitioner. 15. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transit where the property has passed to the buyer. The Operational Creditor would have stopped the goods in transit, as soon as he did not receive the payment within 90 days. The Operational Creditor is also left with the remedy for claiming damages from the buyer for non performance. Moreover, the Applicant has failed to produce any proof of delivery of the goods to the Respondent. So the default cannot be ascertained and as such the claim of Operational Creditor will not qualify as an Operational Debt. When the goods are not delivered to the party, the Applicant can only claim for the damages, for which this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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