TMI Blog2023 (8) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... ently stamped Original Document or an Unstamped Document , can be impounded , and on behalf of the Appellant / Petitioner , before the Adjudicating Authority / Tribunal , a photocopy of the Instrument / Document , was projected and hence this Tribunal , safely and securely holds that the Non-compliance of the ingredients of the Indian Stamp Act, 1899 , the Kerala Stamp Act, 1959 , result in these documents not to be enforceable in Law . One cannot brush aside, a primordial fact that in the instant case, the main CP (IB) / 45 / KOB / 2022, before the Adjudicating Authority / Tribunal (filed by the Appellant / Petitioner ) is founded upon the Non Payment , as per the Settlement Agreement dated 16.07.2020. Although, in the Settlement Agreement , the Respondent / Corporate Debtor, was described as Confirming Party , the Respondent / Corporate Debtor, had specifically guaranteed to pay the Appellant / Petitioner / Operational Creditor , if the Second Party commits Default on the Loan Obligation and Instalment . The real Date of Default , fell during the Suspended Period , to initiate the CIRP Proceedings , against the concerned, under the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the amount within the due date mentioned in the invoices. All the transactions arose on the basis of Invoices were culminated into settlement agreement dated 16.07.2020. When this petition has been filed against the Guarantor of corporate debtor in pursuance of settlement deed dated 16.07.2020, the petitioner cannot fall back on invoices. The date of defaults mentioned in the petition were not existed as on the date of filing this petition they were already merged with the settlement. Thus, the date of default mentioned in the petition is incorrect. Here in this case the date default has very significant role as per the settlement deed the second party to settlement Al Badar Sarl committed default in payment of 1st instalment on 01.08.2020, this is the date falls between 25.03.2020 to 24.03.2021 the suspended period to initiate Corporate Insolvency Process. No petition under section 7,9, and 10 IBC 2016 can be filed for the defaults between 25.03.2020 to 24.03.2021 in view of specific bar provided in first proviso to Section 10A of IBC2016 read with Notification S.O.4638(E) dated 22.12.2020. In these circumstances it appears that to elude from the clutches of section 10A, the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor sold the said Goods , by raising an Invoice Bearing No.XYDPZ19E0526 dated 10.06.2019 for a Sum of USD 290,700/-, an Invoice Bearing No.XYDPZ19E0587 dated 01.07.2019, for a Sum of USD 465,375/-, and an Invoice Bearing No.XYDPZ19E0623 dated 08.07.2019, for a Sum of USD 465,375/-. 7. The Learned Counsel for the Appellant / Petitioner / Operational Creditor points out that the Appellant / Petitioner , had supplied and delivered the said Goods to the Corporate Debtor , vide below listed Bill of Ladings , delivery whereof was accepted by the Corporate Debtor without protest or demur. Besides this, the details of Bill of Lading Bearing Nos. 582578820 dated 17.06.2019; (b) 576302860 dated 08.07.2019 and (c) MEDUN3468877 dated 15.07.2019. 8. The grievance of the Appellant is that, despite taking delivery of the said Goods , the Corporate Debtor , had failed to adhere to the Agreed Payment Terms and make any Payment , to the Operational Creditor . Subsequently, the Appellant / Petitioner / Operational Creditor , had continuously followed up with the Corporate Debtor , making a request for Payment of Outstanding Debt , and that the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Notice dated 30.04.2021, as per Section 8(1) of the Insolvency and Bankruptcy Code, 2016, at the Registered Office of the Corporate Debtor , demanding the Operational Debt . The Corporate Debtor , had sent a Reply dated 14.05.2021, disputing the Payment of Operational Debt , to the Appellant / Operational Creditor , alleging that the Corporate Debtor , was not signatory to the Settlement Agreement Confirming Party , which was done without Authority or Information of the Corporate Debtor , and the Corporate Debtor , has no relation with the Al Badr Sadr or has no Branch in Tunisia . 14. The Learned Counsel for the Appellant, points out that under the Sales Contract , the Payment Terms agreed, was DA 90 days from the date of Bill of Lading and the Invoice dated 10.06.2019 due at 90 days from Bill of Lading bearing No.582578820 was dated 17.06.2019, thus the Debt fell due on 15.09.2019. As per the Invoice dated 01.07.2019, the Debt , under this Invoice, fell due on 06.10.2019 and as per Invoice dated 08.07.2019, the debt fell due on 13.10.2019. 15. The Learned Counsel for the Appellant, points out that the total Sum of Default , was Rs.8,52,78,758. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant that the application could not have been filed under section 7 by the financial creditor, there is no dispute that financial creditor has extended financial benefits to the corporate debtor. The mere fact that the majority debenture holders have not initiated any section 7 application shall not preclude the financial creditor who was entitled to initiate section 7 application on its own right. We thus do not find any substance in the submission of learned counsel for the Appellant. 15. It shall be open for the appellant, in event, settlement is entered between the parties, to file Application under Section 12-A of the I B Code, 2016. In view of the aforesaid, we do not find any error in the impugned order, the Appeal is dismissed. Reply of Respondent / Corporate Debtor : 18. Before the Adjudicating Authority / Tribunal , the Respondent / Corporate Debtor in its Reply , to the main CP (IB) / 45 / KOB / 2022, had averred that the Goods , were also delivered to the Buyer (not the Respondent), which is evidenced through the Bill of Lading Bearing No. 582578820 dated 17.06.2019, as issued by the Shipping Company MAERSK LINE, Bill of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise. 24. Besides this, because of the fact that no Liability or Obligation , is attached thereto in respect of the Claim , against the Respondent / Company which becomes Due , towards the Appellant / Petitioner , the Sum , alleged by the Appellant / Petitioner, cannot be called as Debt . Appellant s Rejoinder: 25. In the Rejoinder of the Appellant / Petitioner, before the Adjudicating Authority / Tribunal , to the main CP (IB) / 45 / KOB / 2022, it is averred that the Respondent / Corporate Debtor, is a subsidiary Company of the said Buyer or the Tunisian Entity , and it can be proved , from the List of Shareholders of the Corporate Debtor , as on 31.03.2021. 26. According to the Appellant / Petitioner, the Corporate Debtor, required the Goods , to be delivered to Tunisia , and the Operational Creditor , had acted as per the Specification , of the Sales Contract , and delivered the Goods , to Tunisia , as per Terms of the Sales Contract . As per the terms of the Sales Contract (vide No. XYLDE19018 dated 24.05.2019, it was agreed that the Buyer / Tunisian Entity , will be named as Consignee (in whose name, Goods , were Shipped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations for stamping of instruments executed outside of India are being sent to the undersigned. It is informed that such documents are to be stamped as per provisions under Section 18 of the Indian Stamp Act, 1899. In view of the above, it is clarified that for stamping of such documents, the holder of such an instrument may purchase the e-stamp paper of appropriate value from any authorized stamp vendor stating the information relevant to the instrument. There is no need to approach the Collector of Stamps in these cases if the e-Stamp paper of appropriate value is purchased within 3 months of the instrument being first brought to India. Henceforth, holders of such instruments are requested to purchase e-stamp papers of appropriate value and enclose the same with the instrument, which shall then be deemed to be stamped with the said value. In case any authority refuses to accept any instrument duly stamped, as stated herein above, this clarification may be brought to its notice and the undersigned be informed. In case any difficulty is faced by public in this regard, the Collector of Stamp concerned may be contacted for intervention. Assessment: 31. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.04.2021), inter alia mentioning that it had not entered into any Business with the Company , at the first instance and hence, the question of it being the Debtor , does not arise. Also that, the Respondent / Corporate Debtor, being the Confirming Party , in the Agreement , which is beyond the Authority of the Signatory / without any information of the Respondent , cannot establish it, as the Corporate Debtor , in the main Petition . 35. Besides the above, the Respondent / Corporate Debtor, in its Reply , to the Demand Notice dated 30.04.2021, issued by the Appellant / Operational Creditor, through its Advocate (under Section 8(1) of the I B Code, 2016), had proceeded to state that Invocation of Guarantee Agreements , for Operational Debt , was not allowed , under the I B Code, 2016, and further that in terms of The Foreign Exchange Management Act, 1999 , the Respondent / Corporate Debtor , cannot make any Foreign Exchange payment, for Goods , not received in India, for which, there was no Bill of Ladings / Endorsements . 36. It is not out of place for this Tribunal , to pertinently point out the Order dated 04.01.2016 in WP No. 33462 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, the power of attorney was registered in the Office of the Sub Registrar Office, Kovilpatti, whereas the sale deed executed by the 6th Respondent in favour of 7th respondent was registered in the Office of the Sub Registrar, KelarajakulaRaman. It is not the case of the parties that the property is situated partly in one jurisdiction and others in another jurisdiction. Section 32 of the Act deals with persons to present documents for registration. It means that every document should be presented by a person who is claiming the property or executing the document. The Registration Act has imposed several conditions regulating the presentation of documents for registration and it is of great importance that those conditions framed with a view to meet the legal circumstances, should not be weakened or strained on the ground that it appears to be strict. The power and jurisdiction of the Registrar will come to play only when they are invoked by a person having a direct relation to the deed. The Registrar, after hearing the parties and after satisfying himself, gets it right to register. The words in Sections 32 and 33 of the Act are imperative for presentation of document for registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers of the Law of the Land (India), but the said Stamp Paper, was purchased in India , and prefaced, with the document. Viewed in that perspective, this Tribunal , unhesitatingly, comes to a clear cut conclusion that the Power of Attorney Document , projected before the Adjudicating Authority / Tribunal , by the Appellant / Petitioner / Operational Creditor , is an invalid and unenforceable one, keeping in view of Non-compliance of the necessary ingredients of the Indian Stamp Act, 1899. 40. Dealing with the aspect of Sales Contracts dated 24.05.2019, 26.06.2019 and the Settlement Agreement dated 16.07.2020, these were absorbed on an Unstamped Paper . In this regard, Section 34 of the Kerala Stamp Act, 1959, enjoins that an Unstamped Instrument, cannot be pressed into Service for any purpose and an Individual is to pay Stamp Duty with ten times Penalty, with a view to validate an Unstamped Instrument . 41. It is to be remembered that an insufficiently stamped Original Document or an Unstamped Document , can be impounded , and on behalf of the Appellant / Petitioner , before the Adjudicating Authority / Tribunal , a photocopy of the Instrument / Docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Application , under Section 9 of the Code , no elaborate enquiry , like a regular Trial of a Civil Suit , is conducted. No wonder, the I B Code, 2016, is not a Debt Enforcement Procedure . 46. At this juncture, this Tribunal , worth recalls and recollects the Judgment of this Tribunal , dated 15.09.2022, between Trafigura India Private Limited Vs TDT Copper Limited (vide Company Appeal (AT) (INS.) No. 742 of 2020), wherein, at Paragraph 17, it is observed as under: 17. The Adjudicating Authority has considered the Settlement Agreement and rightly come to the conclusion that default of instalment of Settlement Agreement does not come within the definition of operational debt as it does not fall within the definition of additional debt as per Section 5(21) of the IBC and further prayer made by the Corporate Debtor that the matter be referred to the Arbitration under Section 8 of the Arbitration and Conciliation Act, the Adjudicating Authority has also rightly held that the role of National Company Law Tribunal is very limited while exercising its power under Section 7, 9 and 10 of the IBC, 2016, it is beyond the scope of Section 9 of the IBC. 47. Be that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
