TaxTMI 
TaxTMI 
2023 (8) TMI 1292
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.... the 'National Company Law Tribunal', Kochi Bench, in 'dismissing' the 'Petition'. 3. While passing the 'impugned order', 03.05.2023, in CP (IB) / 45 / KOB / 2022 (Filed by the 'Appellant / Petitioner'), the 'Adjudicating Authority' ('National Company Law Tribunal', Kochi Bench), at Paragraphs 18 to 20, had observed the following: 18. "The corporate debtor is termed as "confirming party" in the agreement. The term confirming party is different from Guarantor. Even though the nomenclature is used as confirming party, in the settlement agreement the corporate debtor specifically guaranteed to pay the operational creditor if the second party default on loan obligation/instalment. 19. Thus, this petition is rest upon the settlement deed dated 16.07.2020. The second party Al Badar Sarl failed to pay 1st instalment within due date 31.07.2020, it follows default date on 01.08.2020. In the petition part IV (2) the default date is mentioned as 16.09.2019, 07.10.2019 & 14.10.2019 these dates are arrived on the basis failure to pay the amount within the due date mentioned in the invoices. All the transactions arose on the basis of Invoices were culminated into settlement ....
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....ioner, before the 'Adjudicating Authority' (National Company Law Tribunal', Kochi Bench), in CP (IB) / 45 / KOB / 2022, under Section 9 of the I & B Code, 2016 r/w. Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, had averred that the 'Debt', originated from the 'Purchase of Frozen Precooked Skip Jack Tuna Loins' ('Goods') by the 'Corporate Debtor' from the 'Appellant / Petitioner / Operational Creditor'. 5. It is represented on behalf of the Appellant / Petitioner / Operational Creditor that 'Sales Contracts', bearing Nos.XYDE19018 dated 24.05.2019 and XYLDE19023 dated 26.06.2019, between the 'Appellant / Operational Creditor', and the 'Corporate Debtor', were entered into, detailing the agreed conditions for sale of the said 'Goods', and the said 'Goods', were to be shipped by the 'Appellant / Operational Creditor', to the 'Corporate Debtor' to 'Tunisia' Address. 6. It is the version of the Appellant / Petitioner that, as an 'Operational Creditor', as per Specifications and requirements of the 'Corporate Debtor' sold the said 'Goods', by raising an 'Invoice' Bearing No.XYDPZ19E0526 dated 10.06.2019 for a Sum of USD 290,700/-, an I....
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....of USD 1,221,450.00', less any amount paid under the 'Settlement Agreement', will immediately become due and payable jointly and severally by both the 'Corporate Debtor', and 'Al Badr Sarl'. 11. According to the Learned Counsel for the Appellant / Petitioner / Operational Creditor, 'Al Badr Sarl', could not adhere to the 'Agreed Payment Schedule', and the first Instalment of USD 100,000.00 due and payable on or before 31st July, 2020 was paid by 'Al Badr Sarl' in parts where USD 60,000.00 was paid on 17th September 2020 and USD 40,000.00 was paid on 6th October 2020. 12. The Learned Counsel for the Appellant, points out that 'Al Badr Sarl' and the 'Corporate Debtor', had extended only the false promises and assurances, to clear the 'Overdue Instalments' and 'Al Badr Sarl', through its email dated 28.12.2020, among other things, had requested further time, to release payment, in respect of 'Overdue Instalments', on the pretext of Market situation. 13. In fact, the Appellant / Operational Creditor, through an Advocate, had issued a Demand Notice dated 30.04.2021, as per Section 8(1) of the Insolvency and Bankruptcy Code, 2016, at the Registered Office of the 'Corporate Debto....
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....amesh Kymal versus M/s. Siemens Gamesa Renewable Power Pvt. Ltd.' reported in Civil Appeal No.4050 of 2020 regarding Section 10-A of the Code the object of which was sought to be achieved by enacting the Provision, is squarely applicable to the facts of this case. and ultimately, the 'Appeal', was 'allowed'. 17. The Learned Counsel for the Appellant, relies on the Order of the Principal Bench of the 'Appellate Tribunal' in Comp. App (AT) (INS.) No. 1423 of 2022 dated 01.02.2023, between Priyal Kantilal Patel v. IREP Credit Capital Pvt. Ltd. & Anr., wherein, at Paragraphs 13 to 15, it is observed as under: 13. "It is relevant to notice that in clause 9 of the consent terms there was clear stipulation that financial creditor shall be entitled to revive the company petition, the mere fact that instead of reviving company petition, a fresh company petition has been filed under section 7 shall not be reason to reject the company petition and not to entertain the said company petition. 14. No coming to the second submission of Learned Counsel for the appellant that the application could not have been filed under section 7 by the financial creditor, there is no dis....
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....and in its 'Reply', before the 'Adjudicating Authority' / 'Tribunal', that an 'Application', under Section 9 of the I & B Code, 2016, can only be filed on the 'Occurrence of Default', and in the instant case, there is 'any Debt', which becomes 'due', towards the Appellant / Petitioner nor the other elements of making an 'Application', under Section 9 of the Code, were fulfilled. 22. Continuing further, the Respondent / Company, do possess 'Sufficient Evidence' on Record that the 'Goods', were never been delivered to the Respondent / Company, and that was communicated to the Appellant / Petitioner, through a Reply dated 14.05.2021 to the Demand Notice dated 30.04.2021, received on 05.05.2021, as issued by the Appellant / Petitioner. 23. It is the categorial stand of the Respondent / Corporate Debtor (before the 'Adjudicating Authority / Tribunal') that the Appellant / Petitioner, cannot be treated as 'Creditor', as 'No Goods', were delivered to Respondent / Company, and as such, the question of owing any 'Debt' towards the Appellant / Petitioner, does not arise. 24. Besides this, because of the fact that 'no Liability' or 'Obligation', is attached thereto in respect of the ....
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....pondent / Corporate Debtor stands as a 'Confirming Party' / 'Guarantor of Performance' of the Second Party (the 'Buyer'). 29. On behalf of the Appellant / Petitioner / Operational Creditor, it is pointed out before this 'Tribunal', that there is no 'Dispute', existing or otherwise, and the 'Liability' of the 'Corporate Debtor', as a 'Guarantor', under the 'Settlement Agreement', and the 'Sales Contracts', is absolute. The purported defence of the Respondent / Corporate Debtor is a 'frivolous', 'spurious' and a 'mere bluster' and only, to 'avoid the payment of 'admitted debts', the Respondent / Corporate Debtor, had taken a futile stance, which cannot stand scrutiny, in the 'eye of Law'. 30. Proceeding further, it is pointed out on behalf of the Appellant / Petitioner that a 'Circular' dated 09.06.2016 (vide F.1 / 998 / R.B / Div.Com/(HQ)/2014/1030), was issued by the Inspector General of Registration, Government of National Capital Territory of Delhi, (Registration & Stamp Branch), wherein, it is observed as under: "It has been observed that applications for stamping of instruments executed outside of India are being sent to the undersigned. It is informed that such ....
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..../ Petitioner's advocates (TCM & Associates), had issued a 'Demand Notice', dated 30.04.2021, to the Respondent / Corporate Debtor, whereby and whereunder, a request was made to the Respondent / Corporate Debtor, to unconditionally repay the 'unpaid Operational Debt' (in 'Default') in Full, within ten days from the date of receipt of the said Notice, etc. 34. The Respondent / Corporate Debtor, addressed to the Appellant / Petitioner / Operational Creditor's Advocates, has issued a 'Reply' (for the Notice dated 30.04.2021), inter alia mentioning that it had not entered into 'any Business with the Company', at the first instance and hence, the question of it being the 'Debtor', does not arise. Also that, the Respondent / Corporate Debtor, being the 'Confirming Party', in the 'Agreement', which is beyond the 'Authority' of the 'Signatory' / without any information of the 'Respondent', cannot establish it, as the 'Corporate Debtor', in the main 'Petition'. 35. Besides the above, the Respondent / Corporate Debtor, in its 'Reply', to the 'Demand Notice' dated 30.04.2021, issued by the Appellant / Operational Creditor, through its Advocate (under Section 8(1) of the I & B Code, 2016)....
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.... a valid authorisation is a must and failure would result in lack of jurisdiction on the part of the registering authority. Similar view was also taken by this Court in a subsequent decision of G.Ayyakonar Vs. Inspector General of Registration, Chennai and Others, ((2006) 4 MLJ 1257) as well. The following would be the relevant passage in the case of Sekar Mudaliar (supra): ''8. In the instant case, according to the petitioner and the 5th respondent, the entire property is situated at Arasiarpatti Village. Whileso, the power of attorney was registered in the Office of the Sub Registrar Office, Kovilpatti, whereas the sale deed executed by the 6th Respondent in favour of 7th respondent was registered in the Office of the Sub Registrar, KelarajakulaRaman. It is not the case of the parties that the property is situated partly in one jurisdiction and others in another jurisdiction. Section 32 of the Act deals with persons to present documents for registration. It means that every document should be presented by a person who is claiming the property or executing the document. The Registration Act has imposed several conditions regulating the presentation of documents fo....
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.... Stamp Act, 1899, enjoins as under: "Where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector, who shall stamp the same, in such manner as the 1[State Government] may by rule prescribe, with a stamp of such value as the person so taking such instrument may require and pay for". 39. Therefore, it is quite clear that the 'Power of Attorney Document', was not executed in the Stamp Papers of the Law of the Land (India), but the said Stamp Paper, was purchased in 'India', and prefaced, with the document. Viewed in that perspective, this 'Tribunal', unhesitatingly, comes to a clear cut conclusion that the 'Power of Attorney Document', projected before the 'Adjudicating Authority' / 'Tribunal', by the 'Appellant / Petitioner / Operational Creditor', is an 'invalid' and 'unenforceable' one, keeping in view of 'Non-compliance' of the necessary ingredients of the Indian Stamp Act, 1899. 40. Dealing with the aspect of 'Sales Contracts' dated 24.05.2019, 26.06.2019 and the Settlement Agreement dated 16.07.2020, these were absorbed ....
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....ape from the ambit of the ingredients of Section 10A of the 'Code', the 'Appellant / Petitioner / Operational Creditor', had not given the real and correct date, as regards the 'Default'. 44. Suffice it for this 'Tribunal', to relevantly point out that the real 'Date of Default', fell during the 'Suspended Period', to initiate the 'CIRP Proceedings', against the concerned, under the 'I & B Code, 2016'. 45. It is significantly pointed out that 'I & B Code, 2016 Proceedings', are 'Summary in Character'. It must be borne in mind that in an 'Application', under Section 9 of the 'Code', 'no elaborate enquiry', like a regular 'Trial' of a 'Civil Suit', is conducted. No wonder, the I & B Code, 2016, is not a 'Debt Enforcement Procedure'. 46. At this juncture, this 'Tribunal', worth recalls and recollects the Judgment of this 'Tribunal', dated 15.09.2022, between Trafigura India Private Limited Vs TDT Copper Limited (vide Company Appeal (AT) (INS.) No. 742 of 2020), wherein, at Paragraph 17, it is observed as under: 17. "The Adjudicating Authority has considered the Settlement Agreement and rightly come to the conclusion that default of instalment of Settlement Agreement ....