TaxTMI 
TaxTMI 
2022 (9) TMI 635
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 61 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) being aggrieved and dissatisfied by the order dated 15.10.2019 passed by the Ld. Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata) in CP (IB) No. 954/KB/2018 whereby the Appellant who is the Operational Creditor filed Application under Section 9 of the IBC against the Respondent-Corporate Debtor to start Corporate Insolvency Resolution Process (for short CIRP) of the Corporate Debtor as the Corporate Debtor committed default in paying the operation debt of Rs. 6,46,466.00 USD (equivalent to Rs. 4,39,72,617/- approximately), the Adjudicating Authority holding that the dispute appears to be bona fide and hence, this application is not maintainab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at that point of time from September 2012 till May 2013. iii) The Respondent did not adhere to the payment schedule that was suggested by them vide their email dated 6th September 2012. They made certain paltry payments and the last of such payment was made on 05.01.2013 for a sum of USD 1,08,745.26 to the Operational Creditor. After adjustment of the said payment, a sum of USD 6,46,466.00 was still due and outstanding on account of the invoices raised for such supplies. Thereafter, the Advocates of the Appellant vide their letter 22.02.2013 (Annexure A/11) called upon the Respondent to make payment of the balance sum of USD 646,466.60 on the scheduled dates that had been agreed between the parties and as recorded in the emails exchanged....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Pursuant to negotiations between the parties at that point of time, a Settlement Agreement dated 21.07.2015 was entered into between the Appellant and Respondent with the consent of HSBC (Financer of Appellant)) and Euler Hermes (Credit Insurance Cover Provider) wherein the Respondent explicitly admitted its outstanding liability of USD 646,466.60 and further agreed to pay 50% of the entire outstanding dues i.e. USD 323283.00 in 6 monthly instalments from July 2015 to December 2015. Pursuant to Settlement Agreement dated 21.07.2015, the Respondent addressed a letter dated 30.07.2015 to the Allahabad Bank whereby it once again admitted the outstanding dues and further admitted that the dues have been settled at 50% of the debts and directed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is the Operational Creditor is an entity registered and incorporated outside India and made supply of lead scrap radio as per ISRI to the Respondent/Corporate Debtor from time to time and is making a claim in respect of the outstanding invoice for provisions of said goods for USD 6,46,466.60. The Respondent has made payment to the Appellant of invoices other than the outstanding invoices and has acknowledged the operational debt (USD 6,46,466.60) and has undertaken to make payment on multiple occasions and even entered into Settlement Agreement dated 21.07.2015. 4. It is further submitted that as per Settlement Agreement dated 21.07.2015 (at page 85 to 88 of the Appeal) executed between the Appellant and Respondent wherein clause 4 ment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r payment in respect of invoices issued by Supplier must be made to us directly at the below address. Payment to your Supplier (the assignor) or to any other party will not discharge your indebtedness in respect of such invoices". 7. It is further submitted that the 8 invoices which formed the basis of the notice dated 19.06.2017 had been assigned to the Bank absolutely, therefore, the Adjudicating Authority has rightly considered and came to the conclusion that dispute exists between the parties and dismissed the application filed under Section 9. 8. It is further submitted that the purported claim of the Appellant is highly disputed due to various reasons viz. delayed shipments of goods, supply of inferior quality of goods under Pur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ditor is HSBC and not the appellant and only HSBC is entitled to institute proceedings under IBC. Based on these submissions the instant Appeal is not maintainable and deserves to be dismissed. FINDINGS 10. After hearing the parties and going through the pleadings made on behalf of the parties, we are of the considered opinion that Application filed under Section 9 of the IBC has rightly been rejected by the Adjudicating Authority in view of the Settlement Agreement dated 21.07.2015 arrived between the Appellant - Sansing Limited with HSBC and Respondent - APL Metals Limited (Annexure A/16 at page 85 to 88 of the Appeal) which has been quoted in the impugned order, reads as follows: "Thus, Sansing has taken written consent of....