TaxTMI 
TaxTMI 
2019 (9) TMI 1458
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....verments made in the Application are as follows: a) It is averred that Operational Creditor is a company incorporated under the laws of China and is a global leader in telecommunications and information technology, engaged in the business of providing telecommunication equipments and network solutions. The Operational Creditor has been providing the said services across the globe for the past more than 22 years under the Trade Name - ZTE and enjoys very high reputation and goodwill in the said business. b) It is averred that the Corporate Debtor in its normal course of business approached the Operational Creditor in the year 2017 for the supply of smart phones manufactured by the Operational Creditor. After series of discussions & negotiations, the parties entered into an Agreement dated 07.12.2017 ("Supply Agreement"), wherein the Operational Creditor agreed to supply the smart phone products and services related thereto to the Corporate Debtor. The terms and conditions of the Supply Agreement were binding upon the parties and it was agreed under Supply Agreement that payment with respect to the invoices raised by the Operational Creditor will be paid through Let....
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....t Hong Kong. g) It is averred that the payment of USD 132,000 against the supply of 1200 of Tphones units to Palestine, is still not paid even after numerous follow-ups and request by the Operational Creditor. The balance payment of USD 132,000 was not made by the Corporate Debtor against the said invoice to the Operational Creditor. h) It is averred that Apart from the above Purchase Order, the Corporate Debtor had also placed Purchase Order dated 25.01.2018 bearing No. PO-201801-000007 on the Operational Creditor, for supply of 2,000 Tphone Units of RIMO A6 Gold and 8,000 Tphone Units of RIMO A6 Black. The Corporate Debtor issued LC bearing No. 0076MLC00003318 dated 07.03.2018 for an amount of USD 700,000 and LC bearing No. 0076MLC00003018 dated 16.03.2018 for an amount of USD 620,000 towards payment under this P.O. i) It is averred that the Operational Creditor duly accepted the said Purchase Order and supplied 5,250 and 4,750 Tphone units on 31.03.2018 and 11.04.2018 respectively to the carrier agent of the Corporate Debtor and accordingly raised Invoice dated 28.03.2018 and 07.04.2018, respectively upon the Operational Creditor for USD 577,500/- and ....
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....ent if the Operational Creditor failed to supply the products within time, the Operational Creditor has to pay the liquidated damages up to 5% of the aggregate value of the order. c) It is averred that the rejection of payment through Letter of Credit for the invoice bearing No. ZTESMT12001 Dated 28.12.2017 for an amount of USD 132,000 is because of "LC Overdrawn". If the LC is rejected as overdrawn that means that the commitment for the required ordered quantity and supplied quantity has already been fulfilled. d) It is averred that the reason for the rejection of LC in the invoice bearing No. ZTESMT201803008 Dated 28.03.2018 for an amount of USD 577,500 is as follows: 1. LC Expired. 2. LC Closed. e) It is averred that the reason for the rejection of LC in the invoice bearing No. ZTESMT201804009 Dated 07.04.2018 for an amount of USD 522,500 is as follows: 1. LC Expired. 2. LC Closed. f) It is averred the above reasons for rejection of LC are not on account of any default or wilful act by the Corporate Debtor, it was on account of non- performance by the Operational Creditor. The reasons for returning of LC was....
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....ring No. ZTESMT201804009 dated 07.04.2018 for an amount of USD 522,500. e) It is averred Corporate Debtor did not notify the Operational Creditor that it had suffered any kind of loss or damages whatsoever, or that it intended to claim damages against the Operational Creditor for the reason of delay. If the Operational Creditor was liable to pay Liquidated Damages for the alleged delayed shipments, why it was not levied earlier during the transaction or replied to the Statutory Demand Notice contending the same. f) It is averred that the Corporate Debtor had not suffered any loss or damages on account of any delay in supply of Goods by the Operational Creditor, and as such, the applicability of liquidated damages against the Operational Creditor does not arise at all. g) It is averred that the Operational Creditor fulfilled all its obligations under the supply arrangement. It is also evident from one such email dated 08.03.2018 at 2:22 P.M. (Annexure - A/10 at page No. 98 of the Application) shows that Operational Creditor always offered for inspection before the dispatches and the Corporate Debtor had already confirmed the quality and the certification. ....
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....USD 522,500 for supply of 4750 units shipped to India through Corporate Debtor carrier agent in Hong Kong in pursuance of Purchase Order No. 2 dated 25.01.2018, which is shown at Annexure- A-19. Thus, the contention of the Learned Counsel for Operational Creditor that Corporate Debtor has placed two purchase orders for supply of 20,000 T-phone Units at the first instance and 10000 T-phones units at the second instance. The contention of the Learned Counsel is that as per Purchase Order, the Units to be delivered to the agent of Corporate Debtor at Hong Kong and from there to Hyderabad in India. The Letter of Credit was payable within a period of 90 days from the date of shipment as per the purchase orders. Counsel contended that initially Operational Creditor supplied 18,800 T-phones to the Corporate Debtor which was accepted and sold by the Corporate Debtor. 7. Counsel contended that on the request of the Corporate Debtor, remaining 1200 Units were despatched to Palestine instead of India and the same were delivered to the Corporate Debtor's carrier agent at Hong Kong. Necessary papers are shown at Annexure A-8 at page No. 93-96 containing airway bill. The commercial invoic....
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....arly admitted having received 10000 Tphones and they were received before 15.04.2018. At no time the Corporate Debtor raised any dispute with regard to the alleged delay. The Operational Creditor in fact delivered T-phones to the carrier agent of Corporate Debtor at Hong Kong on time. When Operational Creditor submitted the LCs for encashment to the sender bank ICICI, they replied with endorsement "Letter of Credit expired/ LC closed" and returned the documents submitted by the Operational Creditor. It was immediately brought to the notice of the Corporate Debtor and requested to issue fresh LC but nothing was done by the Corporate Debtor and thus committed default. The Operational Creditor demanded the Corporate Debtor to pay the amount and send email and finally Corporate Debtor vide email dated 12.10.2018 shown as Annexure-22 at page No. 125 committed to do needful for clearing the outstanding dues and requested 10-15 days' time for payment. The Learned Counsel contended that Letter of Credit though agreed to be valid for 90 days, however the validity of Letter of Credit given was only for 10 days which is against the agreement. Thus, the Operational Creditor has not receive....
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....s, Operational Creditor committed breach of various terms of agreement. , Learned Counsel contended that there was a pre-existing dispute and the Petition is liable to be rejected. 11. The Learned Counsel for OC relied on the following decisions:- 01. Hon'ble Supreme Court decision in Mobilox Innovations Pvt Ltd. Vs Kirusa Software reported in ,: AIR 2017 SC 4532, (2018) 1 SCC 353. 02 Hon'ble NCLAT decision in Company Appeal (AT) (Insolvency) No. 101 of 2018 in the matter of Milton Consultancy & Engineering Services Ltd vs Vitthal Corporation Limited. 03. Hon'ble NCLAT decision in Company Appeal (AT) (Insolvency) Nos 72 & 77 of 2017 in the matter of International Road Dynamics South Asia Pvt Ltd Vs Reliance Infrastructure Ltd & Ors. 04. Hon'ble NCLAT decision in Company Appeal (AT) (Insolvency) Nos 97 of 2017 in the matter of Achenbach Buschhutten GmbH & Co. Vs Arcotech Limited 05. Hon'ble NCLAT decision in Company Appeal (AT) (Insolvency) Nos 715 of 2018 in the matter of Rajeev K. Aggarwal Vs Panipat Texo Fabs Pvt Ltd & Ors. 06. Hon'ble Apex Court decision in the matter of Pr. Commissioner of Income tax Vs Monnet Ispat....
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.... on 07.10.2017 (PO No. 1 for the sake of brevity) for supply of 20000 Tphone Units of RIMO A-6. Annexure A-5 is the purchase order shown at page No. 81 dated 07.10.2017. The Corporate Debtor raised Letter of Credit in respect of this PO-I. True copy of Letter of Credit dated 16.10.2017 is shown as Annexure A-6. I have seen the Purchase Order and Letter of Credit. The Purchase order shows that the goods to be delivered at Hong Kong by air. The payment terms in the Purchase Order that 100% amount through 90 days Letter of Credit after shipment date. 14. On the request of the Corporate Debtor, 1200 Tphone Units out of 20000 were to be sent to Palestine instead of India. The copy of email sent by Corporate Debtor dated 30.12.2017 is shown as Annexure A-7. It is very clear from the emails that Tphone Units to be sent to Palestine irrespective of Letter of Credit amendments. Annexure A-7 (colly) are the emails from Corporate Debtor which shows directions were given to the Operational Creditor to supply 1200 Tphone Units through its carrier agent at Hong Kong to Palestine. The Operational Creditor has placed necessary documents to establish that there was supply of 20000 Tphone Units t....
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....018 is shown as Annexure A-15. Airway Bill dated 31.03.2018 for sending 5250 Tphone Units is shown as Annexure A-16. Thus, there is evidence from the side of Operational Creditor for purchase Order No. 2. At the first instance 5250 Tphones were supplied and remaining 4750 were supplied on 11.04.2018 under Airway bill which is shown as Annexure A-17. The Operational Creditor raised invoices for supply of Tphone Units for USD 577,500 and 522.500 USD shown as Annexures A-18 and A-19. 17. The main document relied by the Operational Creditor is Annexure A-20, which is email dated 14.05.2018 sent by Operational Creditor to Corporate Debtor to confirm delivery of 10000 Tphone Units and Corporate Debtor sent email reply on the same date confirming receipt of 10000 Tphone Units. The Corporate Debtor gave reply through email that it had received the shipment before 15.04.2018. So, there is absolutely no dispute about delivery of 10000 Tphone Units to the Corporate Debtor. The LCs raised by the Corporate Debtor were rejected by ICICI Bank for the invoices for payment of 5250 and 4750 Tphone Units. Annexure A-21 is the copy of LC rejection letter. It is made clear by ICICI Bank that it was ....
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....appointment as Insolvency Resolution Professional for the period 1st July 2019 to 31st December, 2019 in compliance with Section 16(3)(a) of the Code in order to avoid delay. Accordingly, this Tribunal appoints Mr. Ganapati Ram Appana having registration number IBBI/ IPA-002/ IP-N00351/ 2017-2018/11001, Mob No. 9490094900 e-mail id: [email protected] as Interim Resolution Professional. The aforesaid interim resolution professional has no disciplinary proceedings pending against him. He shall file his written communication and all relevant paper immediately before Registrar of this Tribunal but not later than two days. 20. Hence, the Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code, with following directions :- (1) The Bench hereby prohibits 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; Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any leg....