AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 1707
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Corporate Debtor for the resolution of an amount of Rs. 4,50,40,493.98/-. 3. It is alleged that there was a business relationship between the parties because both the Appellant and the Respondent had entered into an "Exclusive Technology Transfer & Manufacturing Agreement" dated 01.03.2010 for a period of five years which was renewed from time to time. 4. As per the terms of the agreement, the Operational Creditor granted license to the Corporate Debtor to use its technology during the period which was agreed to by the Corporate Debtor for manufacture and supply of the products on an exclusive basis and an obligation was placed on the Corporate Debtor to adhere to the terms & conditions. 5. It is further alleged that as per Clause 3.16 of the said agreement, the Operational Creditor provided the Corporate Debtor with raw material for the manufacturing and packaging of the product. 6. The difference between the parties arose when the Operational Creditor stated to have conducted a physical verification on the premises of the Corporate Debtor in July 2017 and came to know about the missing stock of the raw material which created a doubt in the mind of the Operational ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....considered view that the petitioner failed to establish the relationship of an operational creditor and corporate debtor between the petitioner and respondent and also failed to prove any ascertained and established debt either in respect of any services rendered or goods supplied to the respondent or for any breach of trust or terms of agreements. Hence, the issue is answered in the negative." 9. At the outset, Counsel for the Appellant submits that the Tribunal has erred in not taking into consideration all the documents on record, much less the Rejoinder which has been filed by the Appellant in which the calculation has been given in a format as Annexure A-J, therefore the Impugned Order has been passed without the application of mind. 10. He further submitted that the Tribunal has erred in observing that since the invoices were not raised, therefore the petition is not maintainable. In this regard he has relied upon a decision of the Hon'ble Supreme Court rendered in the case of Consolidated Construction Consortium Limited Vs. Hitro Energy Solutions Private Limited [MANU/SC/0152/2022] and has pressed Paras 24, 41 to 43 which are reproduced as under :- "24. Rule 5....
X X X X Extracts X X X X
X X X X Extracts X X X X
....MOUNT IN DEFAULT." In contrast, Form 4 provides: "[Name of operational creditor], hereby provides notice for repayment of the unpaid amount of INR [insert amount] that is in default as reflected in the invoice attached to this notice." Hence, a demand notice for an operational debt by an operational creditor does not necessarily need to be accompanied by an invoice, but it may be sent where such debt arises under a "provision of law, contract or other document" and for which documents can be attached along with the demand notice. 41. We have to now consider the 'debt' in the present appeal. According to the Appellant, it is the advance payment CMRL made on their behalf to the Proprietary Concern, which was encashed even though the project between CMRL and the Appellant was terminated. On the other hand, the Respondent has attempted to urge that there was no privity of contract between the Appellant and the Respondent, and that CMRL had not transferred the debt to the Appellant. We reject both these submissions. It is amply clear from the facts that the debt arises from purchase orders between the Appellant and the Proprietary Concern (whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, including ones where the operational creditor may have been the receiver of goods or services from the corporate debtor. Finally, the judgment of this Court in Pioneer Urban (supra), in comparing allottees in real estate projects to operational creditors, has noted that the latter do not receive any time value for their money as consideration but only provide it in exchange for goods or services. Indeed, the decision notes that "[e]xamples given of advance payments being made for turnkey projects and capital goods, where customisation and uniqueness of such goods are important by reason of which advance payments are made, are wholly inapposite as examples vis-à-vis advance payments made by allottees". Hence, this leaves no doubt that a debt which arises out of advance payment made to a corporate debtor for supply of goods or services would be considered as an operational debt." 11. He has submitted that the Tribunal has further committed an error in observing that the Appellant has failed to establish the relationship between the Operational Creditor and Corporate Debtor without recording any specific findings except observing that the said finding has been recorded on....