TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 1954
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....whose identification No. Is L27101WB2002PLC094979 having its registered office at 35, Chittaranjan Avenue, Kolkata-700012 in the state of West Bengal. 3. The petitioner has stated that on account of supply of coal to the corporate Debtor between May 2015 and December 2015 the debt is due under various purchase orders placed with M/s. Ankit Metals and Power Limited. 4. The operational creditor has stated that the Corporate Debtor made default in the payment of Rs. 3,40,55,686/- (Rupees Three Crores Forty Lakhs Fifty-five Thousands Six Hundred Eighty-six only). The details of date of default is given in worksheet attached & marked as 'Annexure-I'. 5. The operational creditor has stated that the corporate debtor was to make payment to the operational creditor the legitimate dues of the Operational Creditor of Rs. 2,24,31,283.45/- along with interest @ 24% per annum being Rs. 1,16,24,402.80 total amounting to Rs. 3,40,55,686/-. 6. Under the said purchase order/contract the operational creditor had commenced the Supplying of Coal to the corporate Debtor. 7. The operational creditor has further stated that as per terms of the said contract/agreement, the petitioner had been ....
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.... account where deposits are made or credits normally received by the operational creditor Annexure N. 13. The petitioner has also stated that Mr. Abhishek Baragra, Manager (Legal) has been authorized to act on behalf of the operational creditor. In support of its contention, the petitioner has also filed an affidavit. Petitioner has also submitted the authorization letter which shows that the petitioner company by its resolution dated 16/10/2017 had authorized Mr. Abhishek Baragra, Manager (Legal), to sign, verify, appoint advocate, institute the petition or/execution case, give written statement and complaints, sign affidavits, replies, evidence on behalf of the company with the appropriate Court of law having jurisdiction on behalf of the applicant company. 14. The applicant/operational creditor has delivered demand notice of unpaid operational debt/copy of Invoices on 28th October 2017 to Corporate Debtor in prescribed manner as specified in Rule 5(2) of Insolvency and Bankruptcy (Application to Adjudicating Authorities) Rules, 2016 under Section 8(1) of the Insolvency and Bankruptcy Code, 2016 vide Annexure-'D'. Further, the petitioner has enclosed the proof of servic....
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.... course of business, sometime between 2013 and 2015, the Corporate Debtor had placed around 17 (seventeen) purchase orders for the purchase of Indonesian coal from the Operational Creditor because coal being an important source of captive power generation in the plant of the Corporate Debtor. However, there was a short supply by the Operational Creditor of around 11,550 metric tons of coal. Accordingly, the Corporate Debtor suffered due to not being able to utilize 11,550 metric tons. The Corporate Debtor would have generated 10454000 units (equivalent to 10454 KW) of electricity using such 11,550 metric tons of coal at a cost of Rs. 4/- per unit. However, due to the short supply of coal by the Operational Creditor, the Corporate Debtor had to purchase electricity from the grid of West Bengal State Electricity Supply Distribution Company Limited at a cost of Rs. 6/- per unit. Such differential cost of Rs. 2/- per unit for 0454000 units of electricity has resulted in a loss of Rs. 2,09,09,090/- to the Corporate Debtor. 3. It is further stated that the Operational Creditor had also represented to the Corporate Debtor that its wholly owned subsidiary of Gandhar Glob....
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....ebit note of Rs. 34,50,000/- to the account of the Operational Creditor on account of such rental charges which had to be borne by the Corporate Debtor due to no fault of its own. The Operational Creditor was liable to adjust the price of 15,000 metric tons of coal calculated @ $40 per metric ton and the additional charges of Rs. 34,50,000/- in the account of the Corporate Debtor as maintained by the Operational Creditor by October 2016 and thereby the entire disputes arising out of the defective and inferior quality of goods supplied by the subsidiary company, would be fully settled. 7. Accordingly, the Corporate Debtor made necessary entries in its accounts ledger pertaining to the Operational Creditor's account and thereafter, a sum of Rs. 1,87,15,745.20 remained to the credit of and due on the Corporate Debtor from the Operational Creditor. Copy of the accounts ledger of the Corporate Debtor about the Operational Creditor is annexed at pages 42 to 46 of the reply of the Corporate Debtor. 8. The Corporate Debtor was always under a bona fide belief and impression that the aforesaid agreement as arrived at to resolve the disputes relating ....
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.... Rs. 2,24,31,283.45/- let alone interest at the rate of 24% per annum on such alleged dues or any part thereof. On the contrary, the Operational Creditor is liable to pay a sum of Rs. 1,87,15,745.20/- to the Corporate Debtor on account of the defective supply by the Operational Creditor's subsidiary for which the Operational Creditor has assumed responsibility and liability and the Operational Creditor is also liable to reimburse the Corporate Debtor to the tune of Rs. 2,09,09,090/- as damages. The Corporate Debtor also stated that the Notice of Dispute had been issued by the Corporate Debtor. 13. As the claims of the Operational Creditor were thoroughly disputed, the Corporate Debtor at all times had replied to each of the demand notices of the Operational Creditor issued under Section 8 of the Insolvency and Bankruptcy Code, 2016 and has raised disputes in such replies. 14. The Operational Creditor in its affidavit under Section 9(3)(b) of the Insolvency and Bankruptcy Code, 2016 has also acknowledged the existence of a dispute and has filed an affidavit to that effect. Upon the above said contention, the Corporate Debtor prays for rejection of this Petition. 2....
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....es out a Sampling & Analysis. It is further stated in the reply that the alleged dues raised against invoices should be set off from the dues against Gandhar Singapore Private Ltd. to Ankit Metal Private Ltd. which tantamount to approximately Rs. 3 to Rs. 4 crores. 27. The ld. Counsel for the Corporate Debtor has emphasised on the ledger entry of Gandhar Oil Refinery Ltd. which is at page Nos. 96 and 97 of the petition, which shows that adjustment of Rs. 90,31,549.80 paise was allowed by Operational Creditor on account of quality compensation against sales bill Nos. 1000000084 to 1100000975. 28. Ld. Counsel for the Corporate Debtor has further emphasized the ledger entry of Gandhar Refinery India Ltd., which is at page No.97 of the petition. Ledger entry of this page shows the following: Sub Ledger (LC) Debits Credits Balance ANKIT METAL & POWER.00 11,933,986.00......... 00 LTD. -Amount not Recoverable Agent. Sales Bill No.TRD-INV-K.1100000009 to 1100000058 dated 14-May 15 to 09-Nov-15 Transfer to Bad Debts A/c. 29. By the above entry, the argument has been raised by the ld. Counsel for the Corporate Debtor that amount relating to invoice Nos. 09 to 58 has been adjusted, a....
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....ving the demand notice, the Corporate Debtor has raised a dispute. Ld. Counsel for the corporate debtor also emphasized on the ledger entry which has been filed by the Operational Creditor, which shows that on account of deficiency in service, Corporate Debtor has allowed adjustment of Rs. 90,31,549.80, though this amount relates to substandard supply by a subsidiary company. In reply to the demand notice corporate debtor has stated in para v. that: 'In regards to the due as claimed, such should be set off from the due against Gandhar Singapore Pvt. Ltd to Ankit Metal Pvt Ltd which tantamount to approximately between Rs. 3,00,00,000 to Rs. 4,00,00,000, the exact due is well known to you and your Singapore Company. Further, as you have adjusted certain part of your alleged due against our accounts as kept by Gandhar Singapore Pte. Ltd., the same shows both are under the controlling and financial interest of the same entity. Copy of the statement of accounts maintained for Gandhar Singapore Pte. Ltd. Has been annexed herein and marked as "R-3".' 33. According to the Operational Creditor it has a subsidiary company which is incorporated and based at Singapore. Admittedly th....
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....porate Debtor has been given due credit by the Operational Creditor under the instruction of its subsidiary company. 37. Further, the Corporate Debtor has allegedly claimed an amount varying from Rs. 3 to Rs. 4 Crores against the subsidiary company in its reply. In this regard, the Operational Creditor pointed out that the claim made by the Corporate Debtor is entirely arbitrary. If at all the corporate debtor had any claim it should have been specific, and the corporate debtor would have raised a debit note as it has done in the past. Therefore, this alleged claim is nothing but frivolous and baseless. 38. The ledger account of the Corporate Debtor in the books of the Operational Creditor (Page 96 at Annexure I) shows the amount as "Nil". This is because after giving due credit of the legitimate claim of the Corporate Debtor the recoverable balance amount from the Corporate Debtor has been transferred to the bad debt account. The Operational Creditor maintains an accounting policy of transferring any outstanding debt of more than one year not recovered to be transferred to the bad debt account. This does not under any circumstances mean that the Corporate Debtor is not liable to....
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....e unpaid operational debt. No insolvency professional is proposed by the operational creditor. Hence compliance of section 9(5)(2)(e) doesn't arise. 42. In view of the foregoing facts and circumstances, it appears to me that this application filed under section 9 of the I&B, Code is liable to be admitted. Accordingly admitted upon the following directions: - (1) Moratorium under section 14 of Insolvency & Bankruptcy Code shall apply. (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security 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 s....