TaxTMI 
TaxTMI 
2021 (9) TMI 173
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....etween the Applicant and Corporate Debtor/Respondent for import of Crude degummed Soyabean Oil of edible grade in bulk. Another High Seas Sale Agreement dated 27.10.2018 was executed between the parties for import of Crude Palm Oil of edible grade in bulk. 3. As per petition, it is the case of the Applicant that the Corporate Debtor/Respondent purchased 2000 metric tons of Crude degummed Soyabean Oil of edible grade in bulk supplied by applicant for which an Invoice being SI. No. 01/2018-19 dated 09.05.2018 for an amount of Rs. 9,57,70,000/- was raised. It has been added that towards the aforesaid invoice, a payment of Rs. 6,50,34,000/- only has been received till date and an amount of Rs. 3,07,36,000/- remains due and payable. 4. Further, the Corporate Debtor/Respondent purchased 5000 metric tons of Crude Palm Oil of edible grade in bulk supplied by applicant for which an Invoice being SI. No. 10/2018-19 dated 05.11.2018 for amount of Rs. 19,07,50,000/- was raised, against which no payment has been received till date. 5. It is averred by the Applicant in its application that: "It is noteworthy to state that the goods were supplied as per agreed terms and were dul....
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....a Demand Notice dated 28.01.2021 under Section 8 of the Insolvency and Bankruptcy Code, 2016 to the Corporate Debtor through speed post which was received by the Corporate Debtor at its registered office. 12. That the Corporate Debtor through its Counsel replied to the Demand Notice vide its reply dated 05.02.2021, whereby the Corporate Debtor denied the debt due and further disputed the claimed amount. The Corporate Debtor has referred to the Operational Creditor's letter dated 31.01.2019, whereby the Applicant admitted the Corporate Debtor's complaint with regard to the deteriorated quality of the Crude Palm Oil and assured that it will take up the issue with the supplier and in case they get any refund from the suppliers against the deteriorated quality of the Crude Palm Oil supplied, they will refund the same. The Corporate Debtor has also referred to the Arbitral Award dated 24.09.2019 and hence, raised dispute against the claim of applicant/Operational Creditor. 13. That the Ld. Counsel for the Corporate Debtor on the last date of hearing held on 02.08.2021, submitted that the Corporate Debtor does not wish to file reply and therefore, their right to file reply ....
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....to recover the Claim of the Respondent with the Supplier. ......." 16. We further notice that the Operational Creditor has claimed the same amount of Rs. 22,14,86,000/- in Part IV of the present Petition filed under Section 9 of the IBC 2016, which was the subject matter of the Arbitration (initiated at the behest of the Applicant) and already rejected by the Ld. Arbitrator. That further, there is no submission made by the Applicant/Operational Creditor in its Petition with regard to the steps taken for raising its claim with the original Supplier on the basis of the complaint of the Corporate Debtor/Respondent in terms of the Arbitration Award dated 24.09.2019. 17. Admittedly, the Corporate Debtor has raised dispute over the claim of the applicant within 10 days, as prescribed under Section 8 of the Code, vide its reply to the Demand Notice dated 28.01.2021. The Corporate Debtor in paragraphs 5, 6 and 7 of the reply dated 05.02.2021 to the demand notice, has referred to the Arbitration Proceedings and claimed pre-existing dispute. Further, we notice that the applicant itself had initiated the Arbitration Proceeding to resolve the dispute relating to its claim, which....
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....t/Operational Creditor itself has referred the dispute to the Arbitration proceeding, which resulted in dismissal of the claim of the Applicant being pre-mature, the operational Creditor has failed to prove that its operational debt is undisputed. In terms of Section 9(5)(ii)(d) of the IBC, the moment it is established that there is a pre-existing dispute, the Corporate Debtor gets out of the clutches of the I & B Code. 21. In sequel to the above, the petition is DISMISSED. ============= Document 1 ANNEXURE A-4 BEFORE THE SOLE ARBITRATOR, SHRI SANJIV KUMAR, ADDITIONAL DISTRICT AND SESSION JUDGE (RETIRED), HOUSE NO 1025, SECTOR 24B, CHANDIGARH IN THE MATTER OF M's IS PROTEINS PVT LTD, 18, CHANDERLOK, 2ND FLOOR, PITAMPURA DELHI-110034 36 ...Claimant VERSUS M/s PRESTIGE OILS PVT LTD. SHOP NO. LG-6, PLOT NO. 31, ROAD NO-44, VIKAS TOWER, DDA COMPLEX, RANI BAOH, PITAMPURA, DELHI-110034 ......Respondent 1. The brief facts of the case are that the Claimant and the Respondent executed Two High Seas Sales Agreement (hereinafter referred to as the Agreement) which are the subject matter of the present dispute. Certain disputes h....
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.... the Complaint of the Respondent with the supplier & the Respondent referred to as per Clause No. 10(C) of the High Sess Sales Agreement which is reproduced as under- "10(C). General Conditions For any damage and deficiencies of goods in process of transit unloading due to accidents or should establish beyond reasonable doubt any or all damages and deficiencies of goods duly supported by documents after test/survey and batch survey and proof of their having loaded initial report and claim with the port trust and steam ship company. Claim as made settlement that may be arrived at between the sellers and their suppliers." 4. The Respondent submitted that the Claimant admitted vide letter dated 31.01.2019, that the supplied to the Respondent was on "As is Where is Basis" and the Claimant will lodge the Complaint of the Respondent. The respondent had initially paid a sun of Rs 6,50,34,000 for the supplies but when he came to know that Crude Oil (Edible 38 Document 3 Grade) was not fit for human consumption, hence it was immediately destroyed with intimation to the claimant and balance payment was withheld. 5. After examination of pleadi....