TaxTMI 
TaxTMI 
2019 (11) TMI 1487
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....n the business of export of cup stock baseboard used in the manufacturing of paper cups and cup stocks. And the Corporate Debtor is engaged in the business of manufacturing paper and paper related products such as paper cups and cup stocks. 3. It is submitted by the Operational Creditor that the Corporate Debtor approached Roxce/Handelsgesellschaft MBH' for supply of cup stock baseboard which is to be used in their manufacturing of paper cups and cup stock. Even though the original transaction was between Corporate Debtor and 'Roxce/Handelsgesellschaft MBH' (hereinafter as 'Roxcel Handel') the business along with all rights and obligations of RoxcelHandel, has been legally transferred to Roxcel Trading GmbH (Operational Creditor) from 10.04.2018. 4. The Operational Creditor further submitted that, the Corporate Debtor and the Roxcel Handel have entered into several Proforma Invoice/ Order confirmation in their business transactions. Thereafter disputes arose between them regarding some of the invoices. The present demand is restricted to claim arising out of the undisputed Performa invoices only. 5. The operational Creditor has furnished the following invoice....
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....tor and it is also not necessary for them to get a balance confirmation from the Corporate Debtor regarding the overdue amount to Roxcel Handel. 8. As regards to the quality of the materials supplied to the corporate Debtor. It was clarified by the Operational Creditor that the notice/instant application did not relate to the invoices that are disputed. Therefore, the allegation on quality of material supplied is irrelevant. After all, the Corporate Debtor having reaped the benefits or substantial profits out of the materials/ goods supplied by the Operational Creditor. 9. And the Operational Creditor also submitted that the Corporate Debtor's claim in their reply notice that substantial amount was paid by them is not correct, as the amount they purported to have paid is exactly the amount paid for the supplies made to the Matheel Al- Nujoom Group of Industries (a company incorporated under in the Kingdom of Saudi Arabia, conducting operations in accordance with the laws of that country) (hereinafter as 'MATHEEL').The Corporate Debtor and the Matheel has common Directors and Mr. Shameem Eramakkaveetil Puthiyakath is a joint holder of the account of NUI Pulp and Paper ....
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....tor 06.10.2017 USD 291502.20 Accounted in the name of the Corporate Debtor and adjusted in another invoice which was due and payable by the Corporate Debtor. 12. Hence under these circumstances the Operational Creditor filed an application before the National Company Law Tribunal, Chennai to initiate Corporate Insolvency Resolution Process for recovery of USD 10,12,207 (INR 7,64,54,285.20 (Rupees Seven Crores Sixty-Four Lakhs Fifty-Four Thousand Two Hundred and Eighty-Five and Twenty Paisa) relating to the undisputed invoice, for which payments were not made by the Corporate Debtor. 13. The Corporate debtor in its reply submitted that the present dispute arises out of a contractual relation between M/s. RoxcelHandelsgesellschaft MBH, and the Corporate debtor, to supply goods based on an agreed sample in the year 2016. However, no intimation regarding the transfer of assets, rights and obligation was made to the corporate Debtor. During the course of business, the product quality of several lots was not up to the desired level and was disputed. 14. The Corporate Debtor has also submitted in the Reply that several payments by way of advance remittances in f....
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.... the legitimate expenses required for carrying on the day-today expenses. Therefore, this Authority in exercise of the powers conferred under Rule 11 of the NCLT Rules, 2016, restrains the Corporate Debtor and its Directors from alienating, encumbering or creating any third-party interest on the assets of the 1st Respondent Company till further orders." 18. Against the said order an appeal was filed before the Hon'ble National company Law Appellate Tribunal by the Corporate Debtor. However, NCLAT upheld the Interim order of NCLT, Chennai. The Counsel for the Operational Creditor further informed that an SLP was filed in the Hon'ble Supreme Court by the Corporate Debtor against the said order of NCLAT under CIVIL APPEAL NO(S). 6697/2019. The Hon'ble Supreme court dismissed the appeal with the following observations: 'No case is made out to interfere with the impugned order(s) passed by the Tribunal. The appeal is, accordingly, dismissed.' 19. The Operational Creditor denied all the allegations/averments made by the Corporate debtor in his counter. The Operational Creditor claimed that he had produced relevant e-mail correspondence between the parties where in....
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....e No. 1140 before the Jeddah Commercial Court in Saudi Arabia, the amount so received shall be proportionately reduced from the claim made in this Application. 23. Further it is stated that the Operational Creditor had mixed-up the accounts /invoices of a Saudi Arabian Entity (MATHEL) with accounts of the Corporate Debtor. And there is no agreement or consent, in any manner whatsoever, given by the Corporate Debtor to apportion the payments made by Corporate Debtor towards the account of Matheel. Apportionment of the amounts paid by the Corporate Debtor by the petitioner towards the alleged dues against another company, that too which is incorporated outside India is illegal, contrary to RBI norms, arbitrary and without the knowledge of the Corporate Debtor, even though there were e-mail correspondences between the parties for apportionment, it is a settled principle that parties cannot contract out of the Law. FINDINGS: - 24. At the time of final hearing, the Corporate Debtor was directed to file Audited Financial statements for the Financial year from 2015-16 to 2018-19. After verifying the statements it was clearly evident from the 'Notes to the Financial statements',....
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....Raiffeisen bank International AG. Therefore, the arguments stated by the Corporate Debtor on this ground could not be supported by evidence. Hence, they are bound to be rejected. 29. After getting convinced with the points mentioned by Operational Creditor we proceed further to determine the admissibility of the application based on the landmark judgement of the Hon'ble Supreme Court in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited- 2017 1 SCC Online SC 353", held that as to what are the facts to be examined by the Adjudicating Authority while examining an application under Section 9, which are as follows: (i) Whether there is an "operational debt" as defined exceeding Rs. 1 lakh? (Section 4 of the Code); (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid; and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application w....