TMI Blog2020 (2) TMI 1707X X X X Extracts X X X X X X X X Extracts X X X X ..... than what is stated in the document could or could not be admissible. There was a pre-existing contested dispute and the Adjudicating Authority rightly held that it could not quantify the liability, which would be matter of trial. Appellant calculated dues keeping in view MoU contents of which Respondent disputed before Notice under Section 8 of IBC was sent. There are no reason to interfere with the impugned order. There is no substance in the Appeal. The Appeal is dismissed. - Justice A.I.S. Cheema Member (Judicial) And Kanthi Narahari Member (Technical) For the Appellant: Shri Saurabh Kalia, Ms. Saloni Purohit and Shri Rohit K. Nagpal, Advocates For the Respondent: Shri P. Nagesh And Shri Shivam Wadhwa, JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Understanding ( MoU ) dated 25th January, 216 (Annexure A3, Page-49) was executed. The Respondent Company issued Credit Notes to resolve issues of quality quantity, amounting to Rs. 24,86,67,626/-, which were to be adjusted in 2015-16, 2016-17 and 2017-18. The Appellant claims that in addition to such MoU, an Indemnity Bond was executed by the Respondent (Annexure A4 - Page-52) on the same date, i.e., 25th January, 2016 accepting that it has to receive Rs. 2,46,34,100/- as on 31.12.2016 after adjustment of Credit Notes. However, the Respondent by letter dated 17th April, 2018 (Annexure A7 Page 61) unilaterally terminated the MoU. The Appellant claims that it had sent reply to the Respondent by letter dated 2nd May, 2017 (Annexure A9 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 2016. Inter alia, it was mentioned at page 61 as follows: - The SMW and Indo had reconciled their accounts on December 31, 2015 and calculated the total outstanding amount of Rs. 27,33,01,726/- (Rupees Twenty-Seven Crores Thirty-Three Lakh One Thousand Seven Hundred Twenty-Six) as payable by Indo to SMW ( said Outstanding Amount ). Keeping in view of the financial crunch faced by Indo and on its request, SMW had agreed to issue the following 3 (Three) credit notes ( Credit Notes ) on the condition that Indo shall be purchasing substantial quantity of Aluminium Ingots, Aluminium Billets, Aluminium Wire Rods and Aluminium, Scrap from SMW ( Products ) in the financial years 2016- 17 and 2017-18. The said Credit Notes were in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the parties, in proceeding under Section 9 of IBC, which is summary in nature. It is not possible for the Adjudicating Authority to go into the questions whether the Respondent could or could not have unilaterally withdraw from the MoU and Indemnity Bond given; whether when the understanding has been reduced into writing, evidence other than what is stated in the document could or could not be admissible. These and other aspects would be matter of suit and in such summary procedure, it is not possible to deal with and decide such issues and the Adjudicating Authority has observed: - 6. It is not disputed that the first tranche of the credit notes for Rs. 8,86,67,626/- was adjusted in the year 2014-15. The dissension arose when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years 2016-17, 2017-18. It is on the basis of these credit notes that the Indo seeks initiation of the Corporate Insolvency Resolution Process of SMW while SMW disputes this liability on grounds that these credit notes were given by way of a discount to Indo for future purchases. As Indo had failed to place adequate orders, they were considered to terminate the MoU. It has consistently been their case that the credit notes were given not on against of any outstanding liability, but by way of concession for future transactions. In fact, they have to recover Rs. 2,46,34,100/- which they have now claimed in their counter petition. 8. On the basis of the averments made in both the cross petitions it is noted that replies to the demand no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
