AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 996
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....tween M/s. Thankam Cashew factory and the Corporate Debtor for the purchase of Raw Cashew Nuts Crop, 2017 the purchase money had to be paid in advance. Since M/s. Thankam Cashew Factory was not having the required funds to make immediate payment to the Corporate Debtor, an amount of Rs. 1,15,00,000.- (Rupees One Crore Fifteen Lakhs Only) has been paid to the Corporate Debtor from the account of M/s.Kripa Cashew Exports. 3. Further it is stated that on making supply order, the Corporate Debtor failed to supply the quantity as per agreed terms, the Corporate Debtor supplied short quantity of 268.139 MT valued at Rs. 4,10,22,661 (Rupees Four Crores Ten Lakhs Twenty-Two Thousands Six hundred and Sixty-One Only) and the Corporate Debtor issued Cheque No.10055499 dated 30.10.2017 for an amount of Rs. 1,16,96,603 (Rupees One Crore Sixteen Lakhs Ninety-Six Thousand Six Hundred and Three Only) to M/s. Kripa Cashew Exports, However, on presentation, the cheque was returned due to insufficient funds. 4. As no payments were received from the Corporate Debtor towards the dues, applicant issued a Demand Notice dated 30.09.2020 under Section 8 of the Insolvency and Bankruptcy Code, 2016 (un....
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....on 09.11.2017 for want of sufficient funds in the accounts of the Corporate Debtor. It is also an admitted fact that the cheque was issued towards value of the short-supplied quantity of 268.139 MT payable to M/s.Thankam Cashew Factory and the Operational Creditor. 8. It is further stated that the existence of locus standi on the Operational Creditor can be held to be proved by determining the questions as provided in Mobilox [supra]. (i) Whether there is an Operational Debt as defined, exceeding 1 Crore? The Corporate Debtor by its letter dated 19.10.2017 admits the receipt of an amount of Rs. 1,15,00,000.- from the Operational Creditor for the supply of Cashews. On account of failure to supply the same, the Corporate Debtor has issued a cheque No. 10055499 dated 30.10.2017 for an amount of Rs. 1,16,96,603.-. The same cheque was dishonoured due to insufficient fund, on presentation of the cheque. Hence the first condition of having an operational debt exceeding 1 crore is established. (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? The opera....
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....nety-Six Thousand Six Hundred and Three only) in favour of the Operational Creditor. It is pointed out that the amount indicates that the Operational Creditor has waived the interest part and the cheques were issued towards payment of entire due amount of Rs. 4,10,22,661.- (Rupees Four Crores Ten Lakhs Twenty-two Thousand Six Hundred and Sixty- one only) in four monthly instalments. Three cheques were issued to M/s.Thankam Cashew Factory and the cheque dates were 9.5.2018, 14.5.2018, 21.5.2018 and the cheque issued to the Operational Creditor was dated 18.5.2018. Cheque number 10055508 dated 09.5.2018 for an amount of Rs. 1,00,00,000 (Rupees One Crore) was presented before the Federal Bank on 24.7.2018 and the same was dishonoured. Cheque No. 10055509 dated 14.5.2018 for an amount of Rs. 1,00,00,000 (Rupees One Crore) was presented before the Federal bank on 24.7.2018 and the same was again dishonoured. Immediately after the dishonour of cheque nos. 10055508 and 10055509, the Corporate Debtor has requested the Operational Creditor and M/s.Thankam Cashew Factory not to present the other cheques because the continuous dishonour of cheques would affect the financial credibility of the....
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....son Jose" 13. Cheque numbers. 10055498 and 10055499 were issued by the Corporate Debtor to M/s. Thankam Cashew Factory and the Applicant herein respectively. Cheque number 10055498 was issued in the name of M/s. Thankam Cashew Factory and not in the name of Petitioner. In the absence of assignment or transfer as stipulated in Section 5(20) of the I&B Code,2016 the Applicant/Operational Creditor does not have the locus standi to file this Application on behalf of M/s. Thankam Cashew Factory. The letter dated 07.05.2018 issued by the Corporate Debtor cancelling Cheques numbers. 10055498 and 10055499 is as under:- 07.05.2018 "Thankam Cashew Factory Anayaday P.O. Soornadu North, Kollam Dear Sir As per the agreement dated 05.05.2018, we returning the short supplied quantity amount of Rs. 4,10,22,6611- against the High Sea sale Contract No. RIT/HSS/02/2017-18 dated 31.05.2017 as full and final settlement by four cheques bearing No.10055508 dated 09.05.2018 for Rs. 1,00,00,0 in favour of Thankam Cashew Factory, cheque bearing No.10055509 dated 14.05.20118 Rs,1,00,00,000/- in favour of Thankam Cashew Factory, bearing No.10055510 dated 2....
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....espect of the provisions of the goods or services and the debt in respect of the provisions of the goods or services and the debt in respect of the repayment of dues does not arise under any law for the time being in force payable to the Central Government or State Government, we hold that the Appellant tenant do not come within the meaning of 'Operational Creditor' as defined under sub-section (20) read with sub-section 21 of Section 5 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to 'I&B Code') for triggering Insolvency and Bankruptcy Process under Section 9 of the 'I&B Code'." 18. Thus any amount claimed as due by a person representing as 'Operational Creditor' should demonstrate firstly that the said amount in default falls within the definition of 'claim' as defined in Section 3(6). Such a claim, secondly should be capable of being treated as a 'debt' as defined under Section 3(11) of I&B Code, 2016 and finally the 'debt' should fall within the confines of Section 5(21) of I&B Code, 2016 (i.e.) it should be capable of being treated as an 'Operational Debt' and such an operational debt must be owed by the Corporate Debtor to a cred....