TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 884
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....32/- totalling to Rs. 65,98,187. It is averred in Form-5 that the Petitioner being the Operational creditor is a Registered Company and is a scrap dealer and is engaged in the business of purchase of industrial scrap material and supplying and selling to various smelling units. It is stated that the Corporate Debtor was engaged in the manufacture of sunflower oil and therefore, it was interested to sell industrial scrap material arising out of the manufacturing process. The Operational Creditor has further contended that M/s. Blue Star Alloys Pvt. Ltd., approached the petitioner along with Corporate Debtor for sale of industrial scrap. A purchase deal was entered between Operational Creditor and the Corporate Debtor under which the Petitioner/Operational creditor at the first instance, to provide in advance the Certificate of Remittance of the agreed consideration and then only it will be allowed to lift the industrial scrap on pro-rata basis. It is averred that the Operational Creditor has started remitting advances to the Corporate Debtor as per the understanding and it was allowed to lift such quantity of industrial scrap equivalent to the amount remitted. It is averred that i....
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....nditions. This is transpired from the e-mails shown as Annexure-R/2. M/s. Blue Star Allows Pvt. Ltd., had again committed default. Again, M/s. Blue Star Alloys had requested for extension of time. Meanwhile, the Respondent Company had received a document said to be Power of Attorney on behalf of Blue Star Alloys Pvt. Ltd., executed in favour Mr. Mohammed Saleem Shaikh. Under the said document, he was only a representative of M/s. Blue Star Alloys Pvt. Ltd. It is stated that the Respondent Company had received the consideration for each work executed by M/s. Blue Star Alloys Pvt. Ltd. along with Certificate of Remittance from the petitioner. The CORs are received for adjustment against the sale agreement entered between the Respondent Company and M/s. Blue Star Alloys Pvt. Ltd. Further, the deadline for completing the agreement was by 22.05.2014. Thereafter, the Respondent Company had issued a forfeiture notice as M/s. Blue Star Alloys Pvt. Ltd., had failed to honour the terms of the agreement. A copy of the notice is shown as Annexure-R/8. On account of this failure on the part of M/s. Blue Star Alloys Pvt. Ltd., the Respondent Company was forced to take the services of a new scr....
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....ned the amount to the operational creditor. But, the respondent had failed to do so. Therefore, the petitioner-operational creditor had issued a demand notice dated 24.03.2017 under Rule 5 of I & B Rules. As per the demand notice, the operational creditor has demanded an amount of Rs. 65,15,325/-. Counsel contended that the respondent- corporate debtor did not reply. Therefore, the application for initiation of Insolvency Resolution Process was filed by the petitioner-operational creditor. The counsel contended that the respondent-corporate debtor has admitted that it had received the remittance made by the petitioner-operational creditor, on 03.01.2014, 10.04.2014, 11.04.2014 and 12.04.2014. Therefore, it goes without saying that the petitioner-operational creditor has lifted the industrial scrap worth Rs. 62,63,845/- only and the balance amount is still lying with the respondent- corporate debtor. The contention of the learned counsel that the petitioner-operational creditor is able to establish that it had remitted the amount to the account of respondent-corporate debtor and the industrial scrap worth Rs. 62,63,845/- out of Rs. 1.01 crores was only lifted. Therefore, it is conte....
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....s been legally assigned or transferred'. Counsel contended that the respondent company has entered into contract with M/s. Blue Star Alloys Pvt. Ltd. for sale of Vanaspati Plant equipment and dismantling of building structure and its disposal outside the wipro factor premises. The counsel has relied on the agreement between M/s. Wipro Enterprises Ltd. and M/s. Blue Star Alloys Pvt. Ltd. which is shown as Annexure-R/1 to the reply statement. It is true that Annexure-R/1 discloses that the contract was entered between the respondent company and M/s. Blue Star Alloys Pvt. Ltd. and that there are so many conditions in the work contract. The value of the contract is Rs. 4.15 crores. The agreement does not permit any sub-contract and only authorised representative of purchaser to be present during execution of work. Annexure-R/1 clearly establishes that the respondent company provides that M/s. Blue Star Alloys Pvt. Ltd. to deposit Rs. 1.00 crore as advance and the work to be completed by 31.12.2013 and in case of delay, penalty is provided. The contention of the learned counsel that M/s. Blue Star Alloys Pvt. Ltd. has failed to complete the work within the agreed period. The counsel co....
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....ers are dated 03.01.2014. So, whatever amount is remitted by the petitioner herein to the account of the respondent company, it is towards the sale order between M/s. Blue Star Alloys Pvt. Ltd. and M/s. Wipro Enterprises Ltd. Further, it is clearly stated in the certificate of remittance transaction, that the petitioner will not claim refund. All the certificate of remittances are shown as Annexure-r/6 at pages 19 to 23 filed with the objections. The respondent-corporate debtor has strongly disputed that any amount of the petitioner operational creditor is lying with the respondent company. The respondent company has further denied that the petitioner operational creditor had approached the respondent company with the representative of M/s. Blue Star Alloys Pvt. Ltd. The contention of the respondent company is that the petitioner was never an operational creditor and that there was no operational debt due by the respondent company. Section 5(20) of I & B Code deals with operational creditor. The question is whether the petitioner falls within the meaning of operational creditor. Section 5(21) defines operatipnal debt which reads thus: "21. Operational debt" means a claim in re....
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....ment, any amount available on account of this contract will be forfeited. However, in this letter, the respondent company has again extended the time till 15.09.2014 as a final chance. So, the correspondence was only between M/s. Blue Star Alloys Pvt. Ltd. and the respondent company. The respondent company has also issued reply notice to the winding up notice shown as Annexure-R/10. This is issued to the petitioner. It is made clear in this reply notice that the respondent company had never entered into any contract with the petitioner. So, right from the beginning, the respondent company has taken a stand that it had never entered into any contract with the petitioner and the contract was only with M/s. Blue star Alloys Pvt. Ltd. On the other hand, the case of the petitioner is that it had remitted various amounts to the credit of the respondent corporate debtor and that it did not allow the petitioner to lift the industrial scrap even though the amount was lying with the respondent company. The petitioner has relied on Annexure-2B, which is a self-styled calculation sheet as if the respondent company was liable to pay a sum of Rs. 38,36,155/- to the petitioner and the interest i....