2023 (12) TMI 1017

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....e Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, (Code) against M/s. Nizam Energy Private Limited (Corporate Debtor) has been dismissed by the Tribunal (National Company Law Tribunal, Division Bench -II, Chennai) vide its Order dated 27.04.2021. 2. In brief, the Appellant is engaged in the business of import and trading of coal whereas the Corporate Debtor is having its plant near Tuticorin, Tamil Nadu. The Appellant has been supplying coal to the Respondent either as high sea sale or sale after import. According to the Appellant, the coal is supplied with or without paying TCS (by submitting Form 27C) and the payment of consideration with respect of it, is made sometimes through cheques and sometimes thro....

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....corin in trucks provided by them. It is alleged that as per the Purchase Order, the Appellant was required to make sales Ex-V.O. Chidambaranar Port at Tuticorin i.e., the coal was required to be handled and loaded into trucks of the Respondents and the same was duly honoured by the Appellant by making supplies of 1536.44 MTs of coal on 08.01.2018 (60.36MT), 09.01.2018 (57.10MT), 10.01.2018 (23.42MT), 17.01.2018 (78.68MT), 21.01.2018 (40.44MT), 23.01.2018 (135.90MT), 24.01.2018 (61.14MT), 25.01.2018 (77.82MT), 27.01.2018 (53.70MT), 30.01.2018 (123.44MT), 31.01.2018 (51.06MT), 02.02.2018 (214.52MT), 03.02.2018 (203.34MT), 05.02.2018 (55.48MT), 06.02.2018 (26.10MT), 07.02.2018 (144.82MT), 09.02.2018 (103.24MT) & 10.02.2018 (25.88MT). 4. It ....

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.... 7. The Respondent in Reply to the Application filed under Section 9, for the first time, alleged to have raised objection that the goods were not delivered, therefore, there is no question of the amount being pending against the Respondent which may be termed as a `debt' and of non-payment of the same could be termed as a `default'. 8. The Learned Tribunal has though referred to the list of documents filed by the Appellant with the Rejoinder etc., but has rejected the Application only on the ground that the Appellant has failed to prove the lorry details of the consignment, delivery challan in proof that the goods were actually delivered to the Respondent. 9. Counsel for the Appellant has vehemently argued that the Tribunal has co....