TaxTMI 
TaxTMI 
2021 (9) TMI 486
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....ency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, for initiation of Corporate Insolvency Resolution Process (CIRP) against M/s. Adarsh Global Trades and Services (P.) Ltd. (in short, "Respondent/Corporate Debtor"). 2. Brief facts of the case as submitted by the Operational Creditor are as follows: a) That the Operational Creditor is a registered company incorporated in the year 2018. The Company deals in trading of various agri products. Corporate Debtor is also a registered company incorporated in the year 2012 involved in domestic and overseas trading of metals and steel etc. b) That the Operational Creditor has entered into an Agreement for supply of 5000 MT of Maize on 10.08.2018 for an amount of Rs. 7,25,00,....
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.... filed the present petition concealing the material facts and with misrepresentation and false allegations. That there is no amount due as mentioned in the petition and as such the Corporate Debtor Company has not agreed to pay any amount as mentioned in this petition. c) That Operational Creditor raised a Purchase Order for supply of 5000 MT of Maize on 10.08.2018. The Operational Creditor is making false allegations that they have paid the entire amount to Corporate Debtor within time. As per the terms of the agreement the Corporate Debtor is not liable to supply material unless Operational Creditor makes complete payment. Therefore, the Operational Creditor is due and liable to pay the same at the time of the Performa Invoice. d) Tha....
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....onal creditor has paid an advance amount of Rs. 7,05,00,000/- to the Corporate Debtor towards purchase of 5000MT of Maize and the same fact is not denied by either of the parties. However, considering the provisions of IBC, the most relevant question arising in the facts and circumstances of the instant case is whether an advance paid for supply of goods can be considered as an Operational debt within the provisions of IB Code, 2016 especially in view of the definition of 'operational creditor' and 'operational debt' as stipulated in Section 5(20) & 5(21) of the Code. 6. It is noted that similar question of law arose before the 3-Member bench of Hon'ble NCLAT in the matter of Smt. Andal Bonumalla Vs. Tomato Trading LLP ....
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....) held that:- "Section 5(20) defines 'Operational Creditor' which is R/w. Section 5(21) which defines 'Operational Debt'. In the present case, it is clear from the work order that the amount of Rs. 2,60,000,00/- was advanced by the Respondent M/s. ISMT Ltd. to the 'Corporate Debtor' for supply of 10,000 Metric Tons of Indonesian Thermal Coal. From the aforesaid fact, we find that the Respondent had not supplied any goods nor provided any services and, therefore, it does not come within the meaning of Operational Creditor." We have taken the same view in the case of Roma Infrastructure India Pvt. Ltd. (Supra) and held that Roma Infrastructure India Pvt. Ltd. has not supplied the goods nor provided any services to ....