TaxTMI 
TaxTMI 
2018 (9) TMI 1228
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..... (3) An amount of Rs. 40,63,877/- up to 14.10.2015 is due to Operational Creditor as per averments in the Petition. (4) It is averred that during the course of business transactions, the Operational Creditor had supplied PET Bottle Grade Granules vide four purchase orders on various dates mentioned against each. However, Corporate Debtor paid only a part of the Bill and the balance amount is still outstanding. The details are mentioned hereunder:- Sl. No. Purchase order No. Date of PO. Amount of Bills (in Rs.) Amount paid by Corporate Debtor (in Rs.) Amount outstanding to Operational Creditor 01. 223 14.10.2015 61,34,012/- 59,84,332/- 1,49,680/- 02. 416 19.01.2016 18,71,100/- 18,71,100/- 03. 417 20.01.2016 31,24,944/- 30,37,806/- 86,238/- 04. 66 16.05.2016 38,27,959/- Not paid 38,27,959/- Total due 40,63,877/- (5) It is also averred that Corporate Debtor issued mail dated 23.05.2016 informing the Operational Creditor that they have arranged Letter of Credit dated 21.05.2016 for an amount of Rs. 19,13,980.00 tow....
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....nd contended that Operational creditor sent the notice in Form 3 and Form 4 along with the Petition on 20.12.2017. (b) Petitioner also denied the fact that there is inconsistency over the claim of debt. It is contended that the amount claimed is same as per demand notice dated 20.12.2017 and Form 5. Further Operational Creditor contends that the Corporate Debtor is aware about the service of the notice but did not respond to the notice. (c) Further Operational creditor contends the source of information that Mr. Aziz extended collateral security to avail limits by Operational Creditor in the Federal Bank was shared by Mr. Aziz with a mala fide intention to conspire and withhold the funds of Operational Creditor. Further Petitioner contends that Mr. Aziz does not have any right over the transactions taken place between operational creditor and Corporate Debtor. (d) It is also contended that Mr. Aziz Sultan was only acting in the capacity of a marketing executive and he was kept in loop of the transactions only for the purpose of delivering the goods. (e) The Petitioner avers that the Corporate Debtor agreed to pay the LOC discounting charges in th....
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....re given hereunder: - In respect of voucher No. 223 dated 14.10.2015 for Rs. 61,34,012/- only Rs. 59,84,332 was paid through LOC and balance payable was Rs. 1,49,680/-. For voucher No. 417 of Rs. 31,24,944/- dated 20.01.2016 an amount of Rs. 30,37,806/- was alone paid through LOC leaving balance of Rs. 86,238/-. It is contended by Operational Creditor that for Voucher No. 66 dated 16.05.2016 total amount of Rs. 38,27,959/- is not at all paid. Thus, the amount alleged to be due by the Corporate Debtor to the Operational Creditor is Rs. 40,63,877/-. 8. What are the documents relied by Operational Creditor to prove that the said amount of Rs. 40,63,877/- was due as on the date when the Demand Notice in forms. 3 & 4 was issued to the Corporate Debtor. (a) The Operational Creditor has filed ledger account of the Corporate Debtor maintained in the books of Account. This is shown at page 18 and marked as Annexure-7. This ledger copy pertains to the Corporate Debtor. The amount of Rs. 40,63,877/- was balance payable after adjusting the amount received from the Corporate Debtor. (b) The Operational Creditor has filed the invoice cum delivery challan in respect of the....
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.... purchase order No. 66 dated 16.05.2016. The alleged date of payment of Rs. 19,16,359/- is not at all given in the counter where as in the written arguments it is stated it was paid on 31.03.2017. The contention of the Learned Counsel that the documents filed by operational Creditor which are at page Nos. 13 & 32 would show about payment to Mr. Aziz Sultan. On the other hand the contention of the Learned Counsel for Operational Creditor that it has nothing to do with Mr Aziz Sultan in respect of material supplied to the Corporate Debtor. Counsel contended Mr. Aziz Sultan was said to have been running separate business under the name and style of Monarch Marketing Hyderabad. 10. The contention of Learned Counsel for Corporate Debtor that Mr. Aziz Sultan had introduced Operational Creditor to Corporate Debtor. He has also given his immovable property as security for the loan availed by the Operational Creditor. In that connection, on the advise of Operational Creditor, the Corporate Debtor made payment in respect of amount payable under voucher No. 66 dated 16.05.2016. I have seen page Nos. 13 & 32 of the documents filed by Operational Creditor. Page 13 is a part of Form 3 wherein....
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.... discharge. The details of invoices are given. Operational Creditor filed invoices and delivery challans. The payment of Rs. 15 lakhs is given credit as per ledger copy. It is the specific case of Operational Creditor that amount covered by invoice No. 66 of 16.05.2016 of Rs. 38,27,959/- was not paid. Prior to that the LOC discounting charges of Rs. 1,49,680/- and Rs. 86,238/- was also not paid. Thus total amount due from Corporate Debtor was Rs. 40,63,877/-. 12. The contention of the Counsel for Corporate Debtor that whatever amount collected towards discounting charges by the bank while making payment to the Operational Creditor, LOC discounting charges cannot be held to be due by the Corporate Debtor. Counsel contended Corporate Debtor issued LOC for the total bill amount. The discounting charges is levied on the side of Operational Creditor. Therefore there is no liability on the Corporate Debtor. Here, LOC is issued by Corporate Debtor. However, bank deducted discounting charges while making payment to the Operational Creditor. The operational creditor has not received full payment under LOC issued by Corporate Debtor for the material supplied to the Corporate Debtor. There....
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....ely no variation with regard to the unpaid operational debt due from Corporate Debtor. 16. The next contention of the Learned Counsel for Corporate Debtor that Demand Notice was not served on the Corporate Debtor. The contention of Learned Counsel that Corporate debtor was unable to give reply since Demand Notice was not served on it. On the other hand, contention of the Counsel for Operational Creditor that Demand Notice in Forms 3 & 4 was issued to the Corporate Debtor and it was served. Demand Notice in Forms 3 & 4 is shown as Annexure-6. This Demand Notice dated 20.12.2017 was served on the Corporate Debtor. The Operational Creditor has filed postal track record which is shown as Annexure-19 at page No. 53 of the petition. It is clear from the postal track report, the demand notice issued to the Corporate Debtor was delivered. Therefore, there is no merit in the contention of the counsel for Corporate Debtor that Demand Notice was not served on the Corporate Debtor. 17. It is pertinent to note here that Corporate Debtor never raised any dispute with Operational Creditor prior to the Demand Notice. For the first time, Corporate Debtor raised dispute in the reply/counter fi....
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....udes any person to whom such debt has been legally assigned or transferred; The counsel contended Petitioner/Operational Creditor does not fall within the definition of person as contained in Section 3(23) which reads as follows: 3(23) "person" includes- (a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a trust; (e) a partnership; (f) a limited liability partnership; and (g) any other entity established under a statute; and includes a person resident outside India; The contention of the Learned Counsel the Operational Creditor does not fall in any of the categories stated above. Thus Counsel contended present petition cannot be maintained by Petitioner on the grounds that Petitioner is not Operational Creditor. 20. The question whether Petitioner falls within the definition of Operational Creditor. The contention of the Learned Counsel for Petitioner that Operational Creditor is a proprietary firm. It is an entity established under a statute. The Learned Counsel for Operational Creditor would contend that proprietary firm can maintain the present petition. He has ....