2022 (3) TMI 1222

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....Company incorporated under the Companies Act, 1956, having its registered office at Marshal House, Room No. 234, 2nd Floor, 33/1, Netaji Subhas Road, Kolkata-700001, West Bengal ('Corporate Debtor'). 3. The present petition was filed on 23.09.2019, before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 89,25,811/- (Rupees Eighty Nine Lakh Twenty Five Thousand Eight Hundred Eleven only), including interest 4. Submission of the learned Counsel for the Operational Creditor (i) The case of the Operational Creditor is that transportation/freight services were provided by the Operational Creditor and its unit (i.e., Shubham Logistics) to Jindal Steel and Power Limited ('JSPL') for transportation of Quick Lime/Domolite to JSPL, Raigarh Plant. (ii) However, due to some internal arrangement between JSPL and the Corporate Debtor, the dues were transferred from JSPL to the Corporate Debtor. The same was duly accepted by the Corporate Debtor vide letter dated 20.09.2016 and 10.10.2016, issued to the Operational Creditor. Annexure 6, Pages-23-26 of the CP(IB) No. 1628/KB/2019 (iii) Subseq....

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....onsent to have the outstanding transferred and called upon the Operational Creditors to return their cheques. Ibid (v) Further, in response to the said letter by the Corporate Debtor, the Operational Creditor in its letter dated 29.01.2018 had recorded that they are cancelling the back to back arrangements and they shall make the claims against JSPL and the Corporate Debtor has no liability in this regard. Annexure-B of the Reply (vi) Further, the Corporate Debtor denied that there was any default by the Corporate Debtor because the accounts between the parties were fully and finally settled as acknowledged and accepted by the Operational Creditor. The purported ledger account has been unilaterally prepared by the Operational Creditor. Thus, it does not assist/substantiate the claim of the Operational Creditor. (vii) It is also significant to note that Shubham Logistics is a wholly different entity and cannot make any claim as against the Corporate Debtor because not only the claims stood settled but also there cannot be a joint application by more than one creditor under section 9 of the Code. (viii) The documentation brought on record by the Op....

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....housand Five Hundred Seven only). A cheque of Rs. 5,00,000/- (Rupees Five Lakh only) was again issued by the Corporate Debtor but the same was dishonored leaving an outstanding of Rs. 14,11,507/- (Rupees Fourteen Lakh Eleven Thousand Five Hundred Seven only). (v) The total principal outstanding amount remained to a sum of Rs. 55,27,448/- (Rupees Fifty Five lakh Twenty Seven Thousand Four Hundred Forty Eight only). 7. The Operational Creditor through its Supplementary Affidavit dated 14.07.2021, submits as follows: (i) Letter dated 10.01.2018, on which the Corporate Debtor is relying is frivolous and baseless, the Corporate Debtor is trying to establish a prior dispute to the claim of the Operational Creditor with regard to the material supplied by the JSPL. 8. The Corporate Debtor in its written Submission submits that; (i) The aforesaid stand taken in the Supplementary Affidavit by the Operational Creditor is not only mala fide but also totally misconceived. Firstly, as regards the vague allegation of fabrication, it is well settled that in summary proceedings under IBC, such allegations cannot be adjudicated upon since the same requires trial on e....

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....an instalment amount. For the meaning of "debt", we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning of "claim", we have to go back to Section 3(6) which defines "claim" to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on....