TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 94
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.... cable compounds, LT-XT-XLPE cable compounds, all types of PVC cable compounds and petroleum jelly for jelly filled telephone cables. 3. The respondent/corporate debtor is a company registered under the Companies Act, incorporated on 27,03.2009 having identification No. U31300GJ2009PTC056449 having registered office at GIDC, Umbergaon, Gujarat State, Authorised share capital of the respondent company is Rs. 35,00,000/- and paid up share capital is Rs. 33,29,250/-. 4. The applicant/Petitioner has submitted that the corporate debtor had expressed its desire to purchase certain goods from the operational creditor and had placed two orders dated 05.06.2015 and 04.02.2017. Accordingly, the operational creditor had supplied goods and raised ten invoices dated from 16.06.2015 to 04.02.2017 totally amounting to Rs. 95,68,463.00 (Rupees ninety-five lacs sixty-eight thousand four hundred sixty-three only). That, the corporate debtor has made part payment of Rs. 8,22,500/- and a total amount of Rs. 87,45,963/- (Rupees eighty-seven lacs forty-five thousand nine hundred sixty-three only) is outstanding with interest @ 18% per annum with effect from the relevant due dates. Accordingly, a total....
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....so as to show that there was no agreement for payment of interest. 8. It is further submitted by the corporate debtor that on previous occasions there was 24 purchase orders raised by the corporate debtor on the operational creditor during the same financial year. The total contract aggregate to approx. 862.50 MTs of raw material supplied by the operational creditor to the corporate debtor. The corporate debtor has already made payment of Rs. 7.00 crores approx. in respect of all those 24 contracts except one of Rs. 9.00 lacs which as per the corporate debtor deemed to have been adjusted with agreement of petitioner, hence no amount is due. Findings 9. Heard learned lawyers appearing on behalf of both the sides and also seen the documents annexed to the application/reply. 10. On perusal of the application it is found that the corporate debtor has acknowledged total default vide its e-mail dated 26.11.2017 (Page 24). That apart the corporate debtor had entered into memorandum of undertaking on 5th Day of December, 2017 with various covenants admitting the default which itself is self-explanatory (page 26 to 30). In the said memorandum the corporate debtor acknowledged a sum of R....
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....ring the period between 18.06.2015 and 04.02.2017. On perusal of the copy of invoices it can be seen that in each and every bill, the operational creditor has stipulated that "payment has to be made on or before the date fixed, failing which interest @ 18% shall be charged on overdue payments". Hence the contention of corporate debtor that there is no interest clause in purchase order is not tenable reason as it is given in invoice. The petitioner in support of his contention kept reliance on the decision of Hon'ble Bombay High Court in Jatin Koticha v. VFC Industries (P.) Ltd.2007 SCC online Bom. 1092: which is reproduced here below:- "it is not the requirement of the law that it should be a written contract signed by both the parties. What is necessary is that the suit should be based on a written contract. That, one can find in this case, in the form of invoice which were raised on the defendants along with delivery of the goods in pursuance of each purchase order. The invoices, as stated above, contained the terms and conditions. There is a clear parole acceptance of the invoice on the part of the defendants. The defendants accepted delivery of the goods along with the In....
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....e Industries v. ICICI Bank Ltd. [2017] 143 SCL 625 the Hon'ble Supreme Court after setting out some of the sections of the Code, laid down the scheme of the Code, came to financial and operational creditors triggering the Code against a corporate debtor, it held: '27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and it is not paid, the insolvency resolution process begins. Default is defined in section 3(12) in very wide terms as meaning non_payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of "debt", we have to go to section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning of "claim", we have to go back to section 3(6) which defines "claim" to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (section 4). The Corporate Insolvency Resolution Process may be triggered by the corporate debtor itself or a financial creditor or operational creditor.' 20. Thus, under the facts and circum....