TMI Blog2019 (1) TMI 1802X X X X Extracts X X X X X X X X Extracts X X X X ..... e application under Section 9 was not maintainable. - Company Appeal (AT) (Insolvency) No. 545-546 of 2018 - - - Dated:- 24-1-2019 - Justice S.J. Mukhopadhaya (Chairperson) And Justice Bansi Lal Bhat (Member (Judicial) For Appellant: Mr. Nitin Lalwani, Mr. Shakul R. Ghatole and Mr. Sushant Mahajan, Advocates For Respondent: Mr. Atanu Mukherjee, Advocate, Mr. Kishore Soni, FCA Mr. Mrinal Gunjan, ACA ORDER The respondent M/s. ISMT Limited filed an application under Section 9 of the Insolvency Bankruptcy Code, 2016 (for short, the I B Code ) in Form 5 alleging default of debt amounting to ₹ 2,10,00,000/- . The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench taking into considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any services and, therefore, it does not come within the meaning of operational creditor . Learned counsel appearing on behalf of the respondent referred to a letter dated 9th August, 2018 issued by the corporate debtor to the respondent M/s. ISMT Ltd. for settlement of dues, which reads as follows: 9th August 2018 Dear Mr Pankaj Wahi, SUB : Supply of 10000 MT of Indonesia coal vide work order dated 7th Jan 2012 REF : Our Letter dated 9th March 2015 Your NCLT case no. 1206/1b/9(MB)/2017 We thank you for the courtesy extended to us and the positive response to resolve the pending claims and all issue between us. As the purpose of the advance against your work order could not be fulfilled due to reasons be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sd/- ANIL TANEJA 5. In reply to the same, learned counsel for the respondent submitted that the work order was a joint venture for which the respondent also invested 50% money and 50% of the same was payable to the corporate debtor . If that be so and we accept, as suggested by the learned counsel for the appellant that the respondent invested an amount for the joint ventur,e then in that case the respondent can claim as the financial creditor and not as operational creditor . 6. In view of that we hold that the respondent is not an operational creditor , and, therefore, the application under Section 9 was not maintainable. We accordingly set aside the impugned order dated 13 th September, 2017 passed by the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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