TaxTMI 
TaxTMI 
2021 (9) TMI 926
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....d.' - Operational Creditor against the Corporate Debtor. The Operational Creditor claimed before the Adjudicating Authority that it is a Company incorporated under the laws of Singapore and inter alia carrying on business in metal scrap. Operational Creditor claimed that it had entered into a contract dated 01.03.2016 (Appeal page 90) with the Corporate Debtor and had supplied metal scarp through shipment from Poland to Nhava Sheva Port in India and issued invoices. It is claimed that inspite of repeated requests and reminders Corporate Debtor avoided to pay the due amount of CFR value USD 2,17,682.10/- Operational Creditor also claimed interest on the amount in default. Operational Creditor claimed that it sent demand notice dated 11.12.2017 (Appeal page 87) alongwith Annexures mentioned to the Corporate Debtor but the debt was not cleared. Operational Creditor further pointed out before the Adjudicating Authority the following documents filed with the Application under Section 9. Para 7 of the impugned order reads as under: "In support of its claim, the petitioner has submitted the following documents:- Sl. No. Particulars Page No. 01 Application by operational ....
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....as supported by the required documents which were annexed with the notice (Appeal page 87 at 89) and referring to the documents held that the notice qualified to be demand notice under the IBC. The objection of not filing document confirming no payment was discarded for reasons mentioned in Para 17 of the impugned order. As regards interest, Adjudicating Authority referring to the Interest Act, 1978 and observed that there was nothing to show that it was agreed that there would be no charging of interest. Thus, the defence on this count was discarded. These grounds are not agitated in arguments before us. Even otherwise we do not find force in these grounds and find reasons recorded by the Adjudicating Authority to be well founded. 5. As regards the dispute raised by the Appellant of non-receipt of the metal scrap, impugned order Para 20 to 22 read as follows: "20. The respondent has denied having received metal scrap through bill of lading No. AMRUIN863194 of invoice No. PC/LF/101/16 carrying metal scrap. The appeal further states that, none of the documents referred to by the applicant evidence delivery of goods and the email correspondence produced by the applicant a....
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....ferred to Annexure A10 (page 148) pursis which was filed by Operational Creditor alongwith copy of Circular Resolution dated 04.12.2017 (Appeal page 149). It is signed by two Directors of the Operational Creditor. The arguments of the Learned Counsel for the Appellant is that it being a Foreign Company the document does not show that it has been apostilled or that it has been notarized. The Learned Counsel states that it is a plain paper resolution without signature and does not even bear stamp of the Company. What we find is that apart from this document there was another document dated 04.12.2017 filed by the Operational Creditor with tittle "TO WHOMSOEVER IT MAY CONCERN". The document (at Appeal page 119) is signed and bears stamp of the Operational Creditor. The document refers to the Board Resolution dated 04.12.2017 (Appeal page 149) and that the Board of Directors have authorised Mr. Pratik D. Shah as authorised representative of the Operational Creditor to file legal proceedings against the Corporate Debtor - 'Pioneer Globex Pvt. Ltd.'. The Adjudicating Authority has relied on such document and accepted that filing of Application could not be said to be bad. 11. Learned ....
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....al Creditor. It is not that anybody has come on behalf of Operational Creditor to object to the manner in which the resolution was passed. On the basis of technicalities raised by the Corporate Debtor we do not find that much weight can be given to the argument raised on this count. 14. As regards the dispute raised with regard to the notice under Section 8 of IBC. The Notice is dated 11.12.2017 at Appeal page 87 to 89. The dispute raised is that this notice is not in format and as required under Section 8 read with Rule 5(a) of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 ('Rules' in short). There is Form 3 below the Rules with regard to the format. We have perused the format and particulars recorded in the notice dated 11.12.2017, which annexed copy of the sales contract, copy of tax invoice, copy of bill of lading, packing list, certificate of origin, certificate of weight and declaration as well as list of invoice alongwith interest calculation. Basic requirements of Section 8(1) are as follows: "8. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debt or copy of a....
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....atives of our Company and Company is satisfied as to the quality and quantity that has been shipped. The company will not be raising objections concerning the quality and/or quantity of the said material so shipped hereafter 2. The writing shall be binding upon Company and its Successors and assigns. Place : Mumbai Dated : 14/05/2016 For Pioneer Globex Pvt. Ltd. Director" 18. Thus, it is argued by the Learned Counsel for the Operational Creditor that the Bill of Lading was duly acknowledged as well as shipment was acknowledged. The Counsel also referred to Packing List (Appeal page 93), Certificate of Origin (Appeal page 94), Certificate of Weight (Appeal page 95) and Declaration (Appeal page 96) all dated 17.04.2016 which bear stamps and signatures not only of the Operational Creditor but also of the Corporate Debtor. 19. As regards the strenuous argument made by Learned Counsel for the Appellant to show that the material under Bill of Lading was delivered to someone else, Learned Counsel for the Operational Creditor rightly pointed out terms of Bill of Lading. The Convenience Compilation filed by Respondent vide Dy. No. 27150 has alongwit....
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....ransaction of 3pp k we will be cutting of 100 k so at the end of the month we will be reducing almost 300 k. And so our limit will be reduced to 2 m from 2.3 m. Kindly support us for the same so we can move the business ahead and looking for a healthy relation for future with your good company. Looking for a positive response from ur side. Thanks Hardik Shah Sent from my iPhone" 23. In addition to above Learned Counsel for Operational Creditor pointed out document at page 117 of the Appeal dated 18.10.2016 vide which document Hardik Shah sent message forwarded by Kshitij Shah to [email protected]. The Learned Counsel for the Operational Creditor pointed out that in this email also the dues payable by the Corporate Debtor were acknowledged. The Learned Counsel for the Operational Creditor rightly argued that if the Corporate Debtor had not received the goods, there were no reasons for the Director of the Corporate Debtor to accept that they will be clearing the payments, as seen in the email dated 12.10.2016. 24. We find that the Adjudicating Authority has rightly found that there are dues outstanding which attract Section 9 of IBC. The App....