TMI Blog2020 (9) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... to the settlement of dispute, if any, between the corporate debtor and a third party. The Application under sub-section (2) of Section 9 of I B Code, 2016 filed by the Operational Creditor for initiation of CIRP in prescribed Form 5, as per the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is complete. The existing operational debt is beyond the threshold limit against the Corporate Debtor and its default is also proved. Accordingly, the application filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the Corporate Debtor deserves to be admitted. Petition admitted - Moratorium declared. - CP (IB) 1490/MB/2017 - - - Dated:- 21-8-2020 - Suchitra Kanuparthi, Member (J) And Chandra Bhan Singh, Member (T) For the Appellant/Respondent : Ajit Singh Tawar, Burzin Bharucha, Advocates i/b Nilesh Tribhuvan and Rustom Pondiwal i/b Lata P. Kharwa, Advocates ORDER CHANDRA BHAN SINGH, MEMBER (T) 1. This is an application being CP(IB) 1490/MB/2017 filed by Kumar Brothers Pharma Pvt. Ltd., Operational Creditor/Petitioner, under section 9 of Insolvency Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instructions of the Corporate Debtor, which the Corporate Debtor had promised to pay at a later date. 8. On 18.10.2016 the Petitioner send a first demand notice to the Corporate Debtor. The Corporate Debtor replied to the said demand notice on 24.10.2016 denying the claim made by the Petitioner. 9. Thereafter on 07.04.2017, the second demand notice in Form 3 and 4 under the Code was sent by the Petitioner to the Corporate Debtor. The Corporate Debtor replied to the said demand notice on 19.04.2017 denying the claims made by the Petitioner. SUBMISSIONS BY THE CORPORATE DEBTOR 10. The Corporate Debtor filed reply to the petition denying the liability and raised the following contentions: a. The Corporate Debtor was appointed as distributor of Covidien Health Care India Pvt. Ltd. (CHIPL) who were the suppliers of Peripheral Vascular Products (PV) and Neuro Vascular Product ( NV). These aforesaid products are used in the patients who undergo minimally invasive procedures. There products are life saving products and have to be handled with due care and caution and if any damage is caused to the product or its packing, then such product becomes redundant and cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r distributorship for PV stocks with the main supplier viz. CHIPL in or around 2015. Accordingly, the Corporate Debtor, informed all its sub-distributors including the Petitioner to return the unused PV stocks lying with them on certain terms and conditions. Accordingly, the Corporate Debtor by its email dated 08.10.2015 addressed to the Petitioner, informed the Petitioner to return the PV stocks, subject to they having more than 1 year shelf life, and packing and boxes must be in good condition and subject to its approval by the principal supplier i.e. CHIPL. It was recorded in the said email dated that the Corporate Debtor in exchange of the derived value of the said PV stocks will give NV products to the Petitioner. Pursuant to the said email, the Corporate Debtor gave a credit to the PV stocks to the Petitioner since the stocks received were in good condition and the same was accepted by the supplier viz. CHIPL without any dispute or whatsoever nature. h. The Petitioner are totally aware of the business functioning of the Corporate Debtor company. The Petitioner is also well aware about the terms and conditions of the payment to be made to the Petitioner with regard to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial which was sent to the manufacturer was in damaged condition. m. The Corporate Debtor mentions that so far as the alleged claim of the Petitioner to the extent of ₹ 59,62,383/- is concerned, the same is exaggerated and does not tally with the books of account of the Corporate Debtor (ledger account of Petitioner). Moreover, the Petitioner is not entitled to receive interest @24% p.a. as alleged in the notice dated 07.04.2017. the alleged claim for interest is absolutely unfounded in as much as there is no provision for charging interest by the Petitioner on returned stocks. n. The Corporate Debtor had entered into an agreement with CHIPL and in the said agreement there is a non-compete clause which stipulates that the Corporate Debtor cannot do any business with any other competitive supplier of the NV and PV products for a period of 1 year from the date, the contract is terminated. In view of the negative stipulation in the contract, the Corporate Debtor cannot do any cannot do any competitive business with any other suppliers of NV and PV products for the stipulated period. SUBMISSIONS BY THE PETITIONER IN REJOINDER 11. The Petitioner filed a rejoinder a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the approval of the principal supplier is baseless. f. The email dated 08.10.2015 relied by the Corporate Debtor is with respect to PV products and not in respect to NV products and therefore, the same is not applicable to the facts of the present case which relates to NV products only. g. The Corporate Debtor has admitted that the NV stocks were duly returned at the warehouse of the Corporate Debtor. The Petitioner submit that, in view of the admission made, it can be concluded that the goods were delivered in proper and saleable condition. Any dispute between India Medtronic Pvt. Ltd. and the Corporate Debtor cannot be a subject matter of this petition. FINDINGS 12. On going through the submissions made by the Counsel from the both the sides and on perusing the documents produced on record, the Bench is of the view that as far as the subject relating to the return of stocks to the Bhiwandi warehouse of Corporate Debtor is concerned, there is no dispute and the same has been admitted by the Corporate Debtor. 13. This Bench also takes note of the fact that the Corporate Debtor's Chartered Accountant's letter submitted by Ms. Lata Kharwa, advocate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e total amount 10 percent by way of restocking charges would be deducted. b) The contention of the Corporate debtor that in accordance with e mail of 08-10-2015 the amount becomes due only when the stock is accepted by the Principle supplier is not correct as the said e mail clearly says that it relates only to PV products whereas the Products in question relates to NV products. c) The clinching evidence before this Bench is the Books of Account of the Corporate Debtor in which the Ledger account of the Petitioner is enumerated with all details of payment to be received by the Petitioner from the corporate debtor as on 31 March 2017. This ledger account was submitted before the Bench on the Orders of the Bench dated 17-12-2018. Here the Corporate Debtor itself on affidavit certifies that the amount payable to the Petitioner is ₹ 46, 89,274. Therefore, the Debt of ₹ 46.89 lakh is admitted Debt even by the Corporate Debtor. 17. This Bench has no doubt that at least an amount of ₹ 46,89,274 is a liability which is due from Vascular Therapeutics India Pvt. Ltd. and qualifies as Operational Debt both in terms of Section 3(11) and Section 5(21) of the IBC, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial Assets and Enforcement of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. II. That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. III. That the provisions of sub-section (1) of Section 14 of I B Code shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. IV. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of I B Code or passes an order for the liquidation of the corporate debtor under section 33 of I B Code, as the case may be. V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of I B Code. VI. That this Bench at this moment appoints Mr. Mahesh Sureka, a registered Insolvency Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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