TaxTMI 
TaxTMI 
2018 (12) TMI 967
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....all kind of import, export and domestic movement of goods/ cargo. 3. The Operational Creditor is inter alia engaged in the business of providing quality logistics services for all kind of import, export and domestic movement of goods and cargo. The Operational Creditor has been appointed as a Clearance and Forwarding Agent (C&F Agent) for the said Corporate Debtor and its sister concern Company. The said Operational Creditor has taken the responsibility of facilitating the entire aspects of clearance uptil issue of Bill of Lading for the good of the Corporate Debtor. 4. The Counsel for the Operational Creditor states that in the course of business, the Corporate Debtor along with its sister concern, Trimurti Corn Agro Foods Pvt. Ltd. had exported various goods through the Operational Creditor. Accordingly, the Operational Creditor rendered services for exporting their shipments and raised invoices upon Corporate Debtor for making payment of the same. The total principal amount which were due under the Invoices aggregated to Rs.30,51,543.30. 5. As per the terms of the Invoices, though the payment term was on "immediate" basis, however, the Operational Creditor had agreed to....
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....15/- towards the total outstanding invoices. The Operational Creditor further on 02.01.2017, presented two cheques issued by Trimurti Corns Agro Foods Pvt. Ltd. for Rs.10,00,000/- each drawn on DBS Bank for realisation and both the cheques were dishonoured and returned by the Bank with advice that "payment stopped by Drawer",On the same day, Operational Creditor presented another cheque dated 15.10.2016 for a sum of Rs.1,67,815/- issued by the Corporate Debtor for realisation to DBS Bank and that too dishonoured and return with a remark "Fund insufficient". 9. As no payment was forthcoming and all its efforts of recovery went in vain, and upon realising that the Corporate Debtor is unable/ incapable of paying the admitted operational debt to the Operational Creditor, the Operational Creditor served Demand Notice dated 28.02.2017 upon the Corporate Debtor's sister Concern viz. Trimurti Corns Agro Foods Pvt. Ltd. in Form-3 u/S.8 of the Insolvency &Bankruptcy Code, 2016. 10. The Operational Creditor submits that the liability of the Corporate Debtor to the tune of Rs.16,48,721.98/- is an admitted debt owed on the part of the Corporate Debtor by the signed and stamped Demand Prom....
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....s a document which confirms the ownership of the goods and the possession of the same, and the said Bills of Lading are still with the Operational Creditor till date, and hence the said goods are still in possession of the Operational Creditor. The Operational Creditor dispatched invoices and expressly communicated that till the invoices were not cleared no negotiation on the same shall be done, and the bill of lading shall not be released. It is clear by this that the Operational creditor has been habitual in concealing and not releasing documents which is also evident from the said Operational Creditor concealing the vital documents of a property which were given with bonafide intent as security to the Operational Creditor by the Corporate Debtor. 15. According to Corporate Debtor, technically speaking the person holding the Bill of Lading of the Goods has the possession of the Goods as this is a well settled principle of Law, and that the Bills of Lading have been held by the Operational Creditor and hence it has exercised its right of lien on the goods as a Seller who feels he is Unpaid. 16. The Corporate Debtor submits that due to the act of Operational Creditor, the ent....
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....stainable. 21. This Bench has view that under I & B Code, it need not be seen whether the company is unable to make payment or that the relief sought has bonafide or not. The only criterion to be looked into is as to whether debt and default are in existence as on the date of filing case. Under Section 9 of the Code, if corporate debtor brings it to the notice of operational creditor that debt is in dispute, then such claim cannot lie under section 9 of the Code. To see how this clause "existence of dispute" plays out, we have to read the judgment of Hon'ble Supreme Court delivered in Mobilox Innovations Private Limited v. Kirusa Software Private Limited (September 21st 2017) as to this; the para relevant is as below: "54. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(ii)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a sui....