TMI Blog2022 (6) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of goods for export. It is another matter that the Respondent/Corporate Debtor was unable to make the payment as undertaken. The question is that in subsequent event viz., filing of the counter claim, both parties entered into an arbitration award and that award crystallized the amount due and payable under the supply of goods and Memorandum of Compromise settlement has been arrived by the Respondent/Corporate Debtor in favour of the Operational Creditor herein. It is the nature of goods sold and delivered for which the amount due and payable has not been paid by the Respondent/Corporate Debtor, despite several proceedings taken by the Petitioner/Operational Creditor in different forums. Therefore, it is a clear case of inability to pay the debt by the Respondent/Corporate Debtor. The Petition, as filed by the Operational Creditor in a clear case of debt and default coupled with inability to pay justifies initiation of proceedings. Hence, the petition is required to be admitted under Section 9(5) of the IBC, 2016. Petition admitted - moratorium declared. - CP/IB/12(CHE)/2022 - - - Dated:- 6-6-2022 - R. Sudhakar, J. (President) and Anil Kumar B., Member (T) F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator. The arbitrator after considering the claim, counterclaim, crystallized the issue which is in para 32, 33 34 at page No. 99 as follows: 32. This will answer the points which Claim No. 10 of 2020 directly takes. By no stretch of imagination can SR Marine Foods Pvt. Ltd. claim that its obligation as a contracting party will cease by withdrawal of the subsidy. The matter can further be examined by the fact that withdrawal of subsidy has nothing to do with products purchased by SR Marine Foods Pvt. Ltd. from the Claimant. It is nobody's case that the goods were not supplied. We have already examined that the extension of credit by the Claimant takes the shape of goods made available by the Claimant for a client of SR Marine Foods Pvt. Ltd. The liability to make the payment by the buyer could never have been impacted by a policy change in the Government by withdrawal of the subsidy. It could at best only impact the profit margins of the company. Any failure of SR Marine Foods Pvt. Ltd. to collect the consideration for the supplies effected could not be deflected on the Claimants. 33. The Senior Counsel for the Respondents was fair to admit the transaction was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affected or suspended or delayed . The Senior Counsel, therefore argued that the withdrawal of subsidy affected the chain of transaction that resulted in the ultimate default in payment of consideration by the buyer and therefore, the Clause must be applied. The Arbitral Award concluded in para 51st Page 110 as follows. VIII. Issue No. 8 in Case Nos. 8 and 10 of 2020 51. There are in the nature of residuary issues that require the Arbitrator to make the Award comprehensive. This will also include the consideration of the form and contents of the Arbitrary Award, as spelt out in Section 31 of Arbitration Conciliation Act. i. There shall be an award for Rs. 2,70,07,459/- (Rs. Two Crores seventy lakhs seven thousand four hundred and fifty-nine only) in favour of the Claimant against the Respondents with interest at 18% from the date of the institution of the Claim Statement till the date of payment. ii. The Claimant is entitled to proportionate costs for the amount awarded. iii. Claim No. 8 of 2020 is allowed to the above extent. iv. Claim No. 10 of 2020 filed by the Company is dismissed. v. The counterclaim (by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. 9. It is agreed between the Parties that upon payment of the entire amount of Rs. 2,65,00,000/- within the timelines specified above by SR Marine/Guarantors to Samunnati, SR Marine shall also not press/withdraw their appeal pending against the Arbitral Award but neither Samunnati nor SR Marine/Guarantors shall have any claim or counter claim against each other. 3. It is also worthwhile to mention that prior to the recording of settlement in the year 2019, the same Petitioner/Operational Creditor filed IBA/1368/2019 which was closed on 26.07.2021 by the following order which is at Page 122 as follows: Order in IBA/1368/2019 Ld. Counsel Mr. Nithyaesh Natraj for the Petitioner and Ld. Counsel Mr. Rohan Rajasekaran for the Respondent are present. The parties have arrived at a compromise by a Settlement Deed dated 30.06.2021. Based on the terms and conditions of the Settlement Deed, the Petitioner seeks permission to withdraw this petition with liberty to file afresh petition, if the Corporate Debtor violates the terms and conditions of the Settlement Deed. Based on the compromise arrived between the parties, this IBA/1368/2019 stands dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult is also recorded in the Memorandum of Compromise Settlement which is extracted as follows: Thereafter, SR Marine has defaulted in making payment on the respective due date(s). Despite several mail communications/notices issued by Samunnati to SR Marine. SR Marine defaulted in making the payment to Samunnati. Consequently, Samunnati has filed an application under Insolvency Bankruptcy Code (IBC) with National Company Law Tribunal (NCLT,) Chennai. The application is still pending with NCLT, Chennai. 5. The Senior Counsel Mr. E. Om Prakash for the Respondent referred to the decision of the Hon'ble Supreme Court of India in the case of K. Kishan vs. Vijay Nirman Co. (P) Ltd., more particularly in Para 27, the same reads as follows: 27. We repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an arbitral award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an award, continues even after the award, at least till the final adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period between January 2022-June 2022 at S. No. 52 hereby appoints Mr. S. Amarendran with Registration Number [IBBI/IPA-002/IP-N00634/2018-2019/11962] (e-mail id:-sivakumar.amarendran@gmail.com) as the Interim Resolution Professional subject to the condition that no disciplinary proceedings are pending against such an Interim Resolution Professional named and disclosures as required under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 are made within a period of one week from the date of this order. The IRP appointed shall take in this regard such other and further steps as are required under the Statute, more specifically in terms of Section 15, 17, 18 of the Code and file his report within 20 days before this Bench. 9. The powers of the Board of Directors of the Corporate Debtor shall stand superseded as a consequence of the initiation of the CIRP in relation to the Corporate Debtor in terms of the provisions of IBC, 2016. 10. As a consequence of the Application being admitted in terms of Section 9(5) of the Code, the moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector regulator or any other authority; (b) a surety in a contract of guarantee to a corporate debtor. 12. The duration of the period of moratorium shall be as provided in Section 14(4) of the Code and for ready reference reproduced as follows: (4) The order of moratorium shall have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process: Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the Resolution Plan under sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or Liquidation Order, as the case may be. 13. The Operational Creditor is directed to pay a sum of Rs. 1,00,000/- (Rupees One Lakh Only) to the Interim Resolution Professional upon the Interim Resolution Professional filing the necessary declaration form as required under the provisions of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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