TaxTMI 
TaxTMI 
2022 (1) TMI 403
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....aw Tribunal, Guwahati Bench, Guwahati) while passing the 'impugned order' in CP(IB) No. 34(GB)/2019 (filed by the Appellation/Operational Creditor/Appellant) under Section 9 of the I & B Code, 2016 at paragraphs - 8 & 9 had observed the following: 8. "Heard both sides and perused the record. Both sides submitted their arguments in the line of their assertions and pleadings and also replied upon the above citations. From the careful examination of the record and the submissions, it makes it very clear that the OC and the CD have entered into an agreement with regard to purchase and supply of coal and the OC refused to accept the coal supplied by the CD both on the ground of inferior quality and also in not supplying the coal through a particular vessel by name MV Salt Lake City. It also appears that the prices of coal have been dropped after making payment by the OC to the CD at a particular price. The possibility of refusal of acceptance of coal by the OC due to fall of prices cannot be ruled out since the advocate appearing for the applicant during the course of argument refused to accept coal when asked by this Tribunal as to why can't they resolve the issue by accepting coal f....
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....out costs, with an observation that the 'Order' of dismissal of the Application will not preclude the Appellant/Operational Creditor/Application from initiating necessary recovery proceedings before an appropriate legal forum, if it so chooses. APPELLANT'S CONTENTIONS: 3. Challenging the 'impugned order' dated 24.02.2020 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Guwahati Bench, Guwahati) in CP No. (IB) 34(GB)/2019 in dismissing the 'Application', the Learned Counsel for the Appellant/Applicant/Company submits that the 'Adjudicating Authority' had failed to appreciate that the 1st Respondents in its correspondence had clearly admitted that a 'contract' was made between both the parties and further acknowledged the amounts due on its part even after considering financial losses and interest sum. 4. According to the Learned Counsel for the Appellant, the Appellant had entered into an agreement with the First Respondent on 27.02.2019, towards the purchase of the 'Thermal Coal' and as per the agreement, the First Respondent/Company was supposed to deliver 10,000 MT of 'Thermal Coal' at the basic value of INR 7700 Plus 400 (compensation cess) plus 5% GST ....
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....and made part payments of INR 50,00,000/- on 03.04.2019, 09.04.2019 and 24.04.2019 without any objections. 8. The categorical plea of the Appellant is that the First Respondent never raised any issue of 'Delay Payment' with the Appellant, during the course of transaction. The First Respondent, on 26.04.2019 shared Load Portal Report of another vessel 'JSW Salem' and further informed the Appellant that the remaining quantity of 7600 MT was sold by the First Respondent to another party. The Appellant had issued a reply on 29.04.2019 to the First Respondent stating that it cannot act as per its own whim and fancies and further mentioned that the First Respondent is bound to honour the terms and conditions as agreed to between the parties on 27.02.2019. 9. The Learned Counsel for the Appellant points out that the First Respondent through e-mail dated 31.05.2019 had admitted to the fact that the 'Agreement' was entered between the parties and lifting period of coal was agreed for two months for vessel arrival. Moreover, in the e-mail dated 31.05.2019, the First Respondent had admitted to the fact that the vessel had reached at 'Kandla Port' on 08.03.2019 and keeping in view the statem....
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....erts to the fact that the First Respondent in its e-mail dated 31.05.2019 had admitted to the fact that the Appellant had made an advance payment of Rs. 80 Lakhs to the First Respondent and also paid a Sum Rs. 95,00,000/- by 30.09.2015 irrespective of the fact that the Appellant had only lifted coal of Rs. 20,00,000/-. In fact, that the Appellant was to make an advance payment of 10% or Rs. 1 Crore towards 'Security Deposit' and balance payment was to be made on cash and carry basis. i.e., invoices basis in which the First Respondent was supposed to supply coal to the Appellant. Therefore, an argument is advanced on behalf of the Appellant that there was no lapse whatsoever qua payment against the purchase coal and the 'Appellant' had complied with the agreed 'Terms and Conditions'. 16. The Learned Counsel for the Appellant contends that the First Respondent had sold the remaining quantity of coal 7600 MT to the third party to make profit as the rate of coal was Rs. 8250/MT whereas the transaction with 'Appellant' was made at Rs. 8100/MT. FIRST RESPONDENT'S SUBMISSIONS: 17. The Learned Counsel for the First Respondent submits that First Respondent/Company was always ready and wi....
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.... by the Appellant make it clear that 1476.36 MT of coal was supplied to the 'Appellant'. 22. The Learned Counsel for the First Respondent submits that the First Respondent had never, even once, acknowledged any amount to be due to the 'Appellant'. Further, the e-mail dated 31.05.2019 of the First Respondent is a mere 'offer' to the 'Appellant' thjat the First Respondent will be willing to supply the balance amount of coal, subject to the Appellant making payment of full cargo value, or alternatively, the 'Appellant' who terminate the 'Agreement' for the part performed after forfeiting the 'Security Deposit', 'Adjustment of all Losses', 'Interests', 'Costs' and Expenses and claims incurred by the First Respondent including but limited to differential due to present fallen market price of Coal from the Appellant's advance payment and refund the balance, if any, to the Appellant. Therefore, the aforesaid statement does not amount to 'Acknowledgement of Debt' in any way. 23. The Learned Counsel for the First Respondent comes out with an agreement that before filing and Application under Section 9 of the I & B Code, the 'Appellant' had not informed to the First Respondent in regard to....
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....hat since the NDA does not fall within any of the three sub-clauses of Section 5(6), no "dispute" is there on the facts of this case. We are afraid that we cannot accede to such a contention. First and foremost, the definition is an inclusive one, and we have seen that the word "includes" substituted the word "means" which occurred in the first Insolvency and Bankruptcy Bill. Secondly, the present is not a case of a suit or arbitration proceeding filed before receipt of notice - Section 5(6) only deals with suits or arbitration proceedings which must "relate to" one of the three sub-clauses, either directly or indirectly. We have seen that a "dispute" is said to exist, so long as there is a real dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5(6). The correspondence between the parties would show that on 30th January, 2015, the appellant clearly informed the respondent that they had displayed the appellant's confidential client information and client campaign information on a public platform which constituted a breach of trust and a breach of the NDA between the parties. They were further told that all amounts that wer....
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....irman Nigam Ltd. vs. Indure Pvt. Ltd. & Ors. Reported in (1996) 2 SCC 667 at Spl page 672 wherein at paragraph -8 it is observed as under: 8. "From this factual matrix, the question arises: whether there emerged any concluded contract pursuant to which the parties are bound by the terms and conditions of the tenders submitted to the Board and for further performance? It is seen that the tenders were not jointly signed by the appellant and the respondent but were unilaterally submitted to the Board by the appellant and were later on withdrawn. There did not exist any concluded contract between the Board and the appellant for the performance of the work as per terms and conditions of the tenders floated by the Board. Under Section 32 it was a contingent contract until it was accepted by the Board. In this background, the question emerges: whether there is an arbitration agreement between the parties? It is see; that clause [141 of the agreement [subject to the dispute whether it is arbitrable under clause [14] which is yet another issue with which were are not concerned] independently does not come into existence unless there is a concluded contract pursuant to the proposal made by....
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....e by the Appellant/Operational Creditor for the Invoices and final Bills raised by the First Respondent/Operational Creditor. 34. The Appellant/Operation Creditor had issued a 'Demand Notice' dated 31.05.2019 to the First Respondent and its Directors [under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules 2016} whereby and whereunder a demand was made for the payment of an unpaid operational debt' from the First Respondent/Operational Debtor for an amount of Rs. 1,97,08,068/- excluding interest against the breach of contract as the 'Operational Debtor' had failed to deliver goods and had not refunded the advance sum paid by the Appellant. 35. The Appellant also had averred in the Notice dated 31.05.2019 that 'Debt' became due on account of 'Breach of contract' committed by the First Respondent/Operation Debt as per provisions contained in Chapter V & VI of the Indian Contract, 1972. In fact, the First Respondent/Operational Debtor (through its Directors) was requested by the Appellant's Advocate in the 'Demand Notice' dated 31.05.2019 unconditionally to repay the 'Operation Debt in Default' in full within 10 days from the receipt of the same ....
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....th you the load port report but you could lift only 346.72 MT of coal in March 2019. 4. As agreed by you, the full amount was payable within 45 days, i.e., 12.04.2019 but till date we have not received the full payment form you. 5. Meanwhile, you intended to cancel the order for 4-5K MT on some pretext or the other which we outright rejected and requested you to speed up your lifting of materials at the earliest. 6. However, during telephonic discussion, we agreed to cooperate and sell out some quantity subject to differential price (Rs. 500 per MT) to be borne by you to avoid the burden of interest and port rent charges on you." and the above indicates that some violations on the part of the 'Appellant' relating to the 'Agreement'/'Contract', were pointed out on the side of the First Respondent, which go to establish that there were pre-existing disputes between the parties, as regards the fulfilment of the covenants of the 'Agreement'/'Contracts' dated 27.02.2019 entered into between the parties, in respect of 'purchase of coal'. 40. In the instant case, the First Respondent/Operational Debtor has come out with the plea that 1476.36 MT of coal was supplied to the Appell....