TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 314
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....ive 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. 11,09,69,769/- (Rupees Eleven Crore Nine ....
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....dings 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. 1,42,19,282/- (Rupees One Crore Forty Two Lakh Nineteen Thousand Two Hundred and Eighty Two Only). Further,....
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....eement 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 Respondent had issued an irrevocable Letter of Credit (LC) dated 21.06.2012 for an amount of Rs. 2,70,00,000/- (Rupees Two Crore Seventy Lakh only) in fa....
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.... 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 an examination of the Written Submissions filed by the Financial Creditor on 08.03.2021, the observations made by this Adjudicating Authority are elucidated below: ....
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.... 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 dated 17.02.2017 and an Arbitral Award is a valid record of an event of "default". 7. The written submissions also contain, gist of decisions culled out from the orders passed by various Judicial fora. Based on the above,....
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....btor 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, the averments in the application and submissions made during the course of hearing that the party claiming as Financial Creditor has sold the goods and transferred the document of title to goods to the Corporate Debtor while the goods are still in transit or in the cou....