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TMI Blog2021 (12) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the officials of the 4th Respondent and initiate appropriate action against the said respondents including under S.68 of the Insolvency and Bankruptcy Code, 2016 for the same. d. Direct the 5th Respondent to conduct an investigation through the SFIO into the affairs of NUI Pulp and Paper Industries Private Limited as envisaged under Section 213 of the Companies Act, 2013. 2. The facts of the case in brief are, that the Applicant/Operational Creditor had filed an application under Section 9(6) of the IBC, 2016 against NUI Pulp & Industries Private Limited (Corporate Debtor) on 20/5/2019 before the NCLT Chennai Bench as IBA No. 598/2019 which has been transferred to this Bench and re-numbered as TIBA No. 25/KOB/2019. 3. It is submitted that the Operational Creditor, inter alia, engaged in business of export of cup stocks baseboard used in the manufacturing of paper cups and cups stocks. The Operational Creditor stated that the Corporate Debtor and the Roxcel Handel have been entered into several Proforma Invoice/Order confirmation in their business transactions. Thereafter, the disputes arose between them regarding some of the invoices. The following are the invoices undisput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts from Roxcel Handel to Roxcel Trading, Driving License on 14/4/2020. iii. Incorporation Certificate of Roxcel Trading issued by relevant authority on 19/5/2020. iv. Invoice dated 3/9/2017, 6/3/2017 (2 Invoices), 13/4/2017, 18/4/2017 on 31/5/2020. v. Clarificatory email on USD 2,91,502 amount apportioned, Board Resolution (as per the requirement of the 1st Respondent), mail submitted to the IRP, Minutes of the Extraordinary General Assembly Resolution, Statement of Accounts on 18/6/2020. vi. Self-certified Interest calculation sheet, ledger abstract of both Roxcel Handel and Roxcel Trading, Division Agreement (including its translation with annexures), Claim petition filed against Matheel before Saudi Arabia Court with translation, Confirmation from Saudi Lawyers regarding the restriction of claims to the supplies made to Matheel on 10/7/2020. vii. Division Agreement-Annexures-AOA of Roxcel Handel, AOA of Roxcel Trading Balance Sheets transfers, Clarification from Deloitte on the Balance sheet on 19/7/2020. viii. Notarized Auditors Certificate regarding the amount playable on 21/9/2020. Pursuant to checking of all the clarifications and documents submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62,096.40 against two disputed invoices i.e., 2017INV09404 and 2017INV10887 and interest on delayed payment in addition to the claim of USD 10,12,207.21 claimed before this Tribunal. The details are as under: - 1 Dues against undisputed invoice (claimed in the Application in TIBA/25/KOB/2019 USD 10,12,207.21 2 Dues against disputed invoice USD 4,68,920.10 3 Interest on delayed payment USD 1,93,176.30 Total USD 16,74,303.61 According to the applicant, amounts were pending against the following invoices as under: - Invoice Number Date Amount in USD Undisputed Invoices 1 2017INV02295 06/03/2017 1,18,958.50 2 2017INV02294 06/03/2017 4,09,349.70 3 2017INV03697 13/04/2017 1,18,885.32 4 2017INV03820 18/04/2017 4,06,991.79 Disputed Invoices 5 2017INV09404 03/09/2017 2,91,502.20 6 2017INV10887 13/10/2017 1,77,417.90 Total 14,81,127.30 9. It is also stated that the IRP provisionally admitted the claim of USD 1111460.49 and sought further details from the applicants for further verification of the claims. Therefore, the First Respondent was appointed as Resolution Professional. It is also stated that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Payable to Roxcel 91,05,993.26 1,41,847.05 11. It is stated that as per the books of accounts an amount of Rs. 91,05,993.26 equivalent to USD 1,41,847.05 is only payable to the Applicant, which is the amount reflecting in the audited financial statements of the Corporate Debtor. This fact was also confirmed by this Tribunal in the judgment while admitting the application. The applicant has not disputed the fact that no payment has been received from the corporate Debtor. It is also stated that the present claim by the Applicant is arising out of the amount already paid by the Corporate Debtor but adjusted by the Applicant against the dues of Matheel. The RP is not competent to accept a claim which is already paid in the books of accounts of the Corporate and acceptance of any such claim would be in violation of IBC and detrimental to the interest of other creditors of the Corporate Debtor. 12. It is stated that the Resolution Professional has only relied on the amount transferred by the Corporate Debtor to the accounts of the Applicant for the purpose of verification of claims. The Applicant has also not disputed the receipt of such amount from the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent countries, which clearly shows that it is a concoction of various transactions and most of which are not pertaining to the Corporate Debtor. 14. Since the Applicant/Operational Creditor supplied inferior goods, a dispute exists which has already been pointed out by the Respondent No.1/RP and is mentioned in the Counter to Section 9 Application, filed by the Applicant/Operational Creditor, much before the commencement of CIRP. Therefore, the entire amount relates to the inferior goods, must be written off. The disputed Invoices dated 9th October 2016 and 7th November 2017, are as under: - Sl. No. Date Invoice No. Amount 1 19/09/2016 2016INV06200 $ 40,208 2 25/11/2016 2016INV09200 $ 116,616 3 13/01/2017 2017INV2411472 $ 117,921 4 06/03/2017 2017INV02294 $ 409,349 5 06/03/2017 2017INV02295 $ 118,958 6 13/04/2017 2017INV03697 $ 118,885 7 18/04/2017 2017INV03820 $ 406,992 8 03/07/2017 2017INV07343 $ 161,742 9 03/09/2017 2017INV09404 $ 291,502 10 13/10/2017 2017INV10887 $ 177,418 The Applicant/Operational Creditor agreed that two-third of the amount covered by the invoices has been waived. However, the Respondent No.1/RP did not agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Applicant/Operational Creditor has moved the above-mentioned Application on 12th December, 2020. Therefore, there is nothing in this Application except a bald statement with respect to fraudulent and fabricated transactions, warranting an investigation into the affairs of the Corporate Debtor. Rejoinder filed by the Applicant in reply to Counter 17. In the rejoinder it is stated that the crux of the counter filed by the 1st Respondent [RP] is that the Applicant has unilaterally [i.e., without the concurrence of the Company under CIRP i.e., NUI Pulp & Paper Industries Pvt. Ltd] adjusted the payments made by NUI towards dues of another Company i.e., Matheel. In certain occasions, NUI has also acknowledged the receipt which has been conveniently overseen by the 1st Respondent. The applicant has already set forth the detailed statement of Accounts in the matter. However, for the purposes of convenience and better understanding, it is essential for the Applicant to set forth the following: Sl. No. Payment Date Amount sent by NUI in INR Amount sent in USD Amount received in USD Email sent [reg. Apportion] Apportion- ment to NUI Apportion- ment to Matheel 1 04.10.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the account audit team have not commented upon the interest claim made by the applicant since the interest if any will have to be calculated on the claim finalized by the Tribunal. 21. We have heard the learned counsel for the Applicant, learned counsel for R2 & R3 (the Suspended Directors) as also the Resolution Professional and had gone through the documents produced on record. The reason for rejection stated by the Resolution Professional in her reply statement is that as per the books of accounts of the Corporate Debtor an amount of Rs. 91,05,993.26/- equivalent to USD 1,41,847.05 is only payable to the Applicant, as this amount reflects in the Audited Financial Statement of the Corporate Debtor. The excess amount claimed by the Applicant has already been received by them from the Corporate Debtor and this amount was adjusted by the Applicant against the dues of Matheel. Hence the Resolution Professional has not accepted that amount which has already been paid. If that amount is also accepted by the Resolution Professional, that would be violation of the IBC and detrimental to the interests of other creditors of the Corporate Debtor. Moreover, the applicant has n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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