2018 (12) TMI 1682

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....ted - the Operational Creditor formerly known as M/S. Gulf Oil Corporation Limited, the company which merged with the applicant, i.e. M/s.Gulf Oil Lubricants Limited as per the order of Hon'ble Andhra Pradesh High Court vide order dated 16.02.2014. 2. This application is filed against M/S. Eastern Coalfields Limited - the Corporate Debtor to start Corporate Insolvency Resolution Process (in short, "CIRP") of the Corporate Debtor as it did not pay the interest amount on the original debt of Rs. 84,71,191/-, outstanding towards goods supplied to the Corporate Debtor. 3. It is not in dispute that the principal sum of Rs. 84,71,191/- is already paid pending this application. However, the Corporate Debtor refused to pay amount of inter....

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....d payable by it. This application is not maintainable and the same may be rejected. 7. The Operational Creditor proposed the name of Mr. Chhedi Rajbhar of C. Rajbhar & Co., 40, Strand Road, 2^nd floor, Room No.49, Kolkata- 700 001 having Email id: [email protected] and registration no. IBBI/IPA-001/IP-P00129/2-17-18/10271 as the Interim Resolution Professional. The proposed IRP vide his written communication dated 30.01.2018 accepted the offer and he has declared that there are no disciplinary proceedings pending against him with the Board or ICAI Insolvency Professionals Agency. 8. I heard the Ld. Sr. Counsel, Mr. Banerjee appearing for the Operational Creditor and the Ld. Counsel for the Corporate Debtor at length. Ld. Sr. Cou....

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....r has sought such no objections after approval of the scheme. Hence, the Operational Creditor cannot claim recovery of amount due to demerged company, M/S. Gulf Oil Corporation Ltd. He further submitted that the invoice of the Operational Creditor cannot be said to be the agreement to pay interest but the purchase orders are the agreement regarding the sale price of the goods sold. The purchase orders do not indicate any condition to pay interest on delayed payment. He submitted that demerged company has executed the indemnity bond in favour of the Corporate Debtor. The bond is silent about the payment of interest on the amount that is sought to be claimed. Ld. Counsel further submitted that ruling relied on by the Operational Creditor are ....

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....9;s submissions are based on wrong reading of the material on record. As against this, the invoices (at page 223 onwards) under which goods were sold and supplied clearly indicate that overdue amount was carrying interest @ 18% p.a. beyond credit period. Each invoice bears signature of the authorised representative of the Corporate Debtor and thereby the terms to pay interest on delayed payment was accepted by the Corporate Debtor. Not only that at page 236, the Operational Creditor produced on record the copy of the general terms of conditions of demand letter. Term No.2 clearly states that interest @ 18 % p.a. on such overdue delayed payment also becomes payable. 13. On behalf of the Corporate Debtor, it is submitted that the earlier c....

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....d out that the indemnity bond executed by the Operational Creditor in favour of the Corporate Debtor does not contain the recital that Corporate Debtor is liable to pay interest. In my opinion, it is one more fallacious argument put forth. Indemnity bond was executed by the Operational Creditor stating that if anyone claims amount payable by the Corporate Debtor to them, they will indemnify the Corporate Debtor and nothing more. 15. So, considering the facts and materials on record, I hold that the Corporate Debtor, M/S. Eastern Coalfields Limited is liable to pay interest to the Operational Creditor, that has not been paid in spite of demand. The Operational Creditor complied with other requirements under section 9(3)(b) and 9(3)(c) of ....

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....ty interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. iv) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. v) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vi) The order of morat....