TMI Blog2021 (5) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.09.2018 which appear to be bonafide, regarding the materials supplied. It is not the object of the Code to push profit making and viable units into the rigours of insolvency resolution especially when the objective in the instant case is only recovery of disputed debt. This petition has been filed to recover disputed debt, which is not the object of the Code, treating this AA as a debt recovery forum. An undisputed debt is a sine qua non for an application filed u/s. 9 of the Code. Allowing such a petition against a profit-making viable unit would defeat the purpose of the Code - Petition dismissed. - C. P. (IB) No. 50/BB/2020 - - - Dated:- 13-5-2021 - Rajeswara Rao Vittanala, Member (J) And Ashutosh Chandra, Member (T) For the Appellant : Asmita Deshpande For the Respondents : Gnanesh K. Kempanna ORDER Ashutosh Chandra, Member (T) 1. C.P. (IB) No. 50/BB/2020 is filed by M/s. Chryso India Pvt. Ltd. (hereinafter referred to as 'Petitioner/Operational Creditor') U/s 9 of the IBC, 2016, R/w Rule 6 of the I B (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d quantity of the products during the time that the products were being supplied by the Operational Creditor. The products have been accepted by the Corporate Debtor without any demur. The Operational Creditor in view of the aforementioned Purchase Orders raised twelve corresponding invoices amounting to ₹ 49,57,572/-. (5) It is also stated that the said products were duly received and accepted by the Corporate Debtor but only a part payment of ₹ 3,74,910/- has been made against its liability. Such part payment on behalf of the Corporate Debtor clearly shows that there exists a liability with regards the invoices raised by the Operational Creditor. The remaining amount of ₹ 45,82,669/- remains due and payable from the Corporate Debtor to the Operational Creditor. Additionally, the Corporate Debtor is also liable to pay contractual interest at 24% as stipulated in the invoice for non-payment of the invoice amount after the due date. The Corporate Debtor vide its email dated 8th January, 2018 has confirmed its liability towards the Operational Creditor. The balance confirmation further solidifies the claim that the Operational Creditor has against the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt is due and payable by the Corporate Debtor, and there is no occurrence of any deliberate default on the part of the Corporate Debtor. (2) It is contended that the Operational Creditor had approached the Corporate Debtor expressing its desire and interest in sale and supply of Admixtures/Products and accordingly had provided Demos in respect of the Products proposed to be supplied to the Corporate Debtor. The Corporate Debtor placed/used to place Purchase Orders on the Operational Creditor for the supply of the Admixtures/Products and upon receipt of such Purchase Orders, the Operational Creditor was at liberty to either accept or reject the Purchase Orders. During October 2016 to January 2018 the Corporate Debtor has made prompt payments of ₹ 1,43,25,668/- towards those of the Admixtures/Products supplied and against those deliveries meeting the Corporate Debtor's Quality Specifications and, certain sum are withheld as against unresolved disputes for those supplies not meeting the agreed Master Samples or Ordered Specifications as per the Trial samplings and Corporate Debtor's Purchase Orders. All supply of sub-standard quality of Admixtures/Products were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. For our above mail we did not receive any confirmation, but later we received a letter dt 4th May 2018, offering credit note of 15%. 2. The proposed credit note of 15% amounting ₹ 7.5 Lacs (approximate) is not acceptable by us as we have incurred huge loss using your supplied inferior quality admixture as compared to the proposed credit note. 3. Due to Quality issue/low performance in your supplied admixture leading to mix problem, which further lead to rectification of supplied concrete like crack filling, water proofing and strengthening of concrete using carbon wrapping of columns at several sites, in our clients have held our payments to around 1.50 crores, which we are yet to receive. 4. Though your company technical representatives, had visited our plants and sites on above technical complaints for resolving quality issues they were unable to resolve the same. 5. In consideration of the business relation that we have been having with Chryso we had not shared the details of financial implications/losses that we had incurred due to Quality issues of your admixtures as detailed above. Since you have now indicated of going legal, it will pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court upon appreciating the evidence placed on record by the parties against each other's claim. In the absence of full-fledged trial, this Petition cannot be adjudicated and the same deserves to be dismissed. 4. The Operational Creditor has filed Written Submissions dated 09.04.2021, by inter alia stating as follows: (1) It is stated that the liability of the Corporate Debtor arising from the unpaid invoices of the Operational Creditor clearly falls within the ambit of an 'operational debt' as defined U/s 5(21) of the IBC. The Operational Creditor herein has a claim in respect of the invoices for the manufacturing products that he has provided to the Corporate Debtor. Accordingly, the Corporate Debtor owes a 'debt as defined U/s 3(11) of the IBC to the Operational Creditor herein since the Corporate Debtor has an obligation in respect of the Operational debtor mentioned above. This obligation towards the 'debt' has even been acknowledged by the Corporate Debtor in an email dated 08.01.2018. (2) The Corporate Debtor has in its Statement of Objections raised a plea that the Operational Creditor has annexed incorrect Purchase Orders. The plea has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Respondent to the Petitioner categorically pointing out that the credit note of 15% issued by Petitioner in response to the mail dated 21.03.2018 by Respondent pointing out quality issues of the materials supplied, was not acceptable as the Respondent incurred huge losses. The Respondent states due to quality issue/low performance in your supplied admixture leading to mix problem, which concrete using carbon wrapping of columns at several sites, and our clients have held our payments to around 1.50 crores, which we are yet to receive . 9. It is further stated in the email dated 08.09.2018 as follows In the interest of the good vendor customer relationship We were willing to resolve the pending payment issue mutually, provided if you were acceptable to our request of credit note for ₹ 9,48,672/- which we had been discussing during all your visits and now that you have indicated to go legal, the settlement on receipt of credit note for ₹ 9,48,672/- is null and void and we will claim for the actual losses while it is discussed legally. 10. It is also noted that from 2016-2018 the Respondent has also paid amount of ₹ 1,43,25,668/-. As per the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
