TaxTMI 
TaxTMI 
2019 (4) TMI 1886
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....managed and under control of Resolution Professional Mr. Raj Kumar Ralhan. 2. A Petition u/s 9 of IBC was submitted by the 'Operational Creditor' M/s. Weather Makers Pvt. Ltd. against the 'Corporate Debtor' M/s. Parabolic Drugs Ltd. which was admitted vide an order dated 30.08.2018, by invoking the provisions of section 9 of IBC, thereupon moratorium u/s 14(1) of IBC was pronounced. In the said order it is specifically directed that the supply of essential goods and services to the Corporate Debtor must not be suspended or interrupted during the 'Moratorium' period. 3. The Applicant M/s. Sun Pharmaceutical Industries Ltd. (erstwhile Ranbaxy Laboratories) had entered into a "Manufacturing & Supply Agreement" dated 11.02.2010 with the Corporate Debtor. In terms of the said agreement, the Corporate Debtor had agreed to manufacture a Drug (Cefaclor) for the Applicant and in turn the raw-material for the purpose of manufacturing of the said Drug was supplied by the Applicant M/s. Sun Pharmaceutical Industries Ltd. The Applicant has placed on record the said "Manufacturing & Supply Agreement" dated 11.02.2010 executed between Ranbaxy (erstwhile name) on one hand and Parabolic Drugs....
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..... Evidences of supply of the raw material are annexed with the Application. 5. The grievance of the Applicant is that neither the manufactured product was made available to the Applicant nor raw material was returned to the Applicant. Moreover, after the pronouncement of moratorium the Applicant had not been allowed to visit the manufacturing unit. The Applicant has informed that electricity connection was disconnected in September 2018. The apprehension is that the raw material being a sensitive chemical might get perished by the passage of time. Being aggrieved, this Application is moved seeking an order for return of raw material as supplied by this Operational Creditor/Applicant to the Corporate Debtor. 6. Ld. Representatives of both the sides are present and heard at length. 7. From the side of the Applicant, a legal argument has been raised that the admitted position of supply of goods was not denied by the Resolution Professional. Further, it is pleaded that provisions of Section 14 do not apply in this situation because the material supplied do not fall under the category of essential goods or services. The Ld. Counsel has informed that "Essential Supplies" are def....
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.... opposed this application. It is pleaded that once the Moratorium u/s 14 of IBC is in operation, then the recovery of any property by any owner which is in possession of the Corporate Debtor is prohibited, referred section 14(1)(d) of the Code. 8.1 It is also argued that the term "property" is defined u/s 3(27) of the insolvency code which includes money, goods, actionable claim, land, etc. The raw material which is supplied is the "Property" as mentioned in section 14(1)(d) which is under prohibition, therefore, cannot be recovered from the possession of the Corporate Debtor. 8.2 Ld. Representatives have also informed that the said request for release of the goods lying in possession of the Corporate Debtor and under control of RP was put forth for the discussion before the CoC and by a meeting of 05.01.2019 it was resolved to obtain a legal opinion on this issue. Finally, it is pleaded that this Application is with the sole objective to protect its interest over and above the other Operational Creditors, instead of having share percentage in the offer to be made as per a Resolution Plan yet to be received. 9. Heard the rival submission and perused the records of the case....
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....n. Through this explanation an exception is carved out that for the purpose of this section i.e. section 18(1)(f) the followings shall not constitute an Asset and therefore, an Asset owned by a third party, however, in possession of the Corporate Debtor, held under trust or under contractual arrangement. In short, an Asset belonging to an Operational Creditor, however, in possession of a Corporate Debtor shall not be treated as an Asset, therefore, the RP shall not be allowed to take control and custody over the said Asset. In the light of this provision if we examine the facts of this case, it is not in dispute that the Operational Creditor M/s. Sun Pharmaceutical Ltd. has supplied the raw material which is in possession of the Corporate Debtor i.e. Parabolic Drugs Ltd. should be released without delay being perishable in nature, following section 18(1)(f) r/w Explanation. 11. A question is to be answered that what are the areas of operation of Sec. 14 vis-a-vis Sec. 18 of IBC. A fine distinction is available between these two enactments. The area of operation of Sec. 14 is in respect of property which is occupied or in possession of the Corporate Debtor. The property as define....