TaxTMI 
TaxTMI 
2021 (5) TMI 314
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..... 5,25,00,000/- (Rupees Five Crore Twenty Five Lakh) as on 12.10.2018 for services rendered by the Applicant to the Corporate Debtor. The outstanding interest payable on the unpaid amount of debts as on 12.10.2018 by the Corporate Debtor is at a mutually agreed rate of 15% of the reducing balance (as per the Arbitral Award) amounts to Rs. 1,42,19,282/- (Rupees One Crore Forty Two Lakh Nineteen Thousand Two Hundred and Eighty Two only). Further, in case the Corporate Debtor fails to pay the said interest, an additional interest of 24% per annum will be applicable on the said amount which amounts to Rs. 4,42,50,487/- (Rupees Four Crore Forty Two Lakh Fifty Thousand Four Hundred and Eighty Seven only) as on 20.08.2019 (also referred to as "Outstanding Delayed Interest Due"). The Outstanding Delayed Interest fell due and payable for all the instalments payable by the Corporate Debtor. The Applicant/Financial Creditor reserves the right to collect interest on the unpaid amounts till the date of realization of the principal payments. The total amount due and payable by the Corporate Debtor including the Outstanding Principal Amount and the Outstanding Delayed Interest amount stands at Rs....
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.... the parties vide the Procedural Order Sheet of the arbitration proceedings dated 30.07.2015. d) A Legal Notice was sent by the Financial Creditor to the Corporate Debtor demanding payment dated 21.01.2016. e) On an appeal filed by the Corporate Debtor against the said award, the Hon'ble High Court of Bombay passed an order in Arbitration Petition No. 999 of 2016 dismissing the appeal filed by the Corporate Debtor dated 17.02.2017. f) Thereupon, the Corporate Debtor sent an email dated 22.02.2018 acknowledging the debt and on 10.05.2018 and 18.05.2018 to settle the dispute. g) The total outstanding principal amount due and payable by the Corporate Debtor stands at Rs. 5,25,00,000/- (Rupees Five Crore Twenty Five Lakh) from 12.10.2015 (hereinafter referred to as the "Outstanding Principal Amount Due"). The Outstanding Principal Amount fell due and payable on 12.10.2018. The Corporate Debtor has till date not made any payment. h) The outstanding interest payable on the unpaid amount of debts as on 12.10.2018 by the Corporate Debtor is at a mutually agreed rate of 15% of the reducing balance (as per the Arbitral Award) amounts to Rs. 1,....
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.... a seller and a buyer for import and delivery of crude palm oil on cash basis. Therefore, any debt, if any, arising out of the said agreement cannot by any stretch of imagination be termed as a "financial debt" as per Section 2(8) of the Code. c) The Counsel for the Respondent/Corporate Debtor states that it is relevant to note herein that as per the relevant clauses of the High Seas Sale Agreement, the Respondent was liable to pay the Applicant for import of 500 MTs of crude palm oil @ 1191.25 USD per MT (applicable exchange rate 1 USD = Rs. 52.39) i.e., Rs. 3,12,04,793.75/-. Out of the said amount, the Respondent had already paid a total sum of Rs. 51,80,719/- including certain charges amounting to Rs. 46,80,719/- (as per Clause 7 of the High Seas Sale Agreement, at the time of entering into the agreement. It is to be noted that the receipt of the said amount of Rs. 51,80,719/- has been duly admitted by the Applicant. d) The Counsel for the Respondent/Corporate Debtor states that it is further relevant to note that for the remaining amount of Rs. 2,60,24,074.75/- plus certain other charges under Clause 2 of the High Seas Sale Agreement dated 23.04.2012. The Resp....
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....000/- standing in our credit in our books and amounts which the Corporate Debtor has claimed in excess of the agreed prices of some 3 shipment of Crude Palm Oil, there raised by the Respondent. Copy of the ledger account of the Respondent for the period from 01.04.2011 to 31.03.2012 is annexed thereto and marked as Annexure-R2A of the Application. f) The Counsel for the Respondent/Corporate Debtor states that in addition to the above, it is submitted by the Counsel for the Respondent that the Applicant had paid a sum of Rs. 35,00,000/- to one M/s. Suraj Agro Infrastructure (India) Pvt. Ltd. on behalf of the Respondent as part clearance of the Respondent's rental arrear of their warehouse. Pursuant to the said transaction and in order to maintain its books of accounts correctly, the Applicant asked the Respondent to enter into a loan renewal and working capital agreement dated 21.03.2013 of Rs. 71,00,000/-. The Applicant also forced the Respondent to honour the said loan renewal agreement by issuing a post-dated security cheque of Rs. 71,00,000/-. The Respondent after much reluctance issued a cheque of Rs. 71,00,000/- in favour of the Applicant under protest." 6. On ....
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....resent petition. It cannot lie for the Respondent herein to now take advantage of the fact that payment of the additional loan borrowed by the Respondent herein will amount to repayment of the claimed outstanding dues of the Petitioner. f. It is not disputed that the Corporate Debtor has not made payments as per the Arbitration Award which provided thirty days' time for payment of the awarded amount. Non-payment of the awarded amount thus amounts to a 'default' of debt under the IBC. g. The Financial Creditor relies on the judgements of Hon'ble Bombay High Court in R.K. Textiles, Mumbai vs. Sulabh Textiles Pvt. Ltd., Mumbai, 2002 (4) Mh.L.J. 678; Hon'ble NCLAT in Kirusa Software Private Ltd. Vs. Mobilox Innovations Private Limited - Company Appeal (AT) (Insolvency) 6 of 2017; Annapurna Infrastructure Pvt. Ltd. Vs. SORIL Infra Resources Ltd. and Urgo Capital Limited vs. Bangalore Dehydration and Drying (Company Appeal (AT) (Insolvency No. 984 of 2019. h. Therefore, in the light of the above judgements the arbitral award has become final on account of the appeal being dismissed in Arbitration Petition No. 999 of 2016 by way of an order d....
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....nding payment. Thereafter, it appears that the Corporate Debtor had filed an appeal before the Hon'ble High Court of Bombay in Arbitration No. 999/2016 which is reportedly dismissed on 17.02.2017. Thereafter, it is seen from the application that the Corporate Debtor had sent an email dated 22.02.2018 acknowledging the debt with a view to settle the dispute. 12. In this context, this Adjudicating Authority hereby elucidate the characteristic of transaction by means of High Seas Sale (HSS) Agreement, which is a sale carried out by the actual consignee (the consignee shown in the Bill of Lading) to the other buyer while the goods are yet on the high seas after its dispatch from the Port of Loading and before their arrival at the Port of Discharge which is otherwise known as purchase in the course of import before the goods cross the territorial waters of India, with a view to conclude the sale in order to save the local Sales Tax/GST. This is a usual Trade Practice followed and practiced in the Import Trade for avoiding double taxation in the downstream commercial transaction when the situs of the goods is in India. 13. It is learnt from the copy of High Seas Sale agreement,....