TaxTMI 
TaxTMI 
2022 (11) TMI 1596
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....11.07.2017 which was executed on 01.08.2017 assigning all the receivables (present and future) from the Corporate Debtor in relation to supply of goods and services, to the present Applicant. The Respondent was duly informed about the said assignment vide notice of assignment of debt which was duly acknowledged by the Respondent/Corporate Debtor on 03.05.2018. Therefore, all dues payable by the Respondent/Corporate Debtor to the Supplier in pursuance of different sale contracts were assigned to the Applicant. It may be mentioned that the Corporate Debtor approached the Supplier to purchase Tin Ingots and Nickel Full Plate and hence contract dated 03.08.2019 was executed between the Corporate Debtor and the Supplier for supply of 175 metric tonnes of Tin Ingots. There were six transactions which took place between the parties and six invoices were issued which are as follows:- Sr. No. Invoice Date of Invoice initial Date of default Revised date of default Amount in INR USD 1 SMPL/786/100 28.09.2018 26.01.2019 25.04.2019 3,45,57,997.58/- 491,950.50/- 2. SMPL/786/109 09.10.2018 06.02.2020 07.05.2019 3,48,41,699.52/- 495....
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.... petition is disputed and therefore the present Application is liable to be dismissed. 5. Since, the pleadings in the matter were completed, the matter was heard on merits on different dates i.e., 17.12.2021, 11.03.2022, and 17.03.2022 and the matter remained as part heard before this Tribunal. At this stage, the Respondent filed an Interlocutory application, being IA No. 1408/2020, under Rule 11 of NCLT Rules 2016 read with Section 33 of the Stamp Act seeking the following directions from this Tribunal:- i. To examine the documents (alleged to be the documents of 'assignments') in terms of Section 33(2) of the Indian Stamp Act and impound the same in terms of Section 33(1) of the Indian Stamp Act and/or ii. Pass an order that the documents (alleged to be the documents of 'assignments') are not been stamped therefore, in terms of Section 35 of the Indian Stamp Act cannot be relied upon by the Operational Creditor/Applicant. 6. The Applicant in the said IA (Respondent in the present matter) contended that the two documents relied upon by the Applicant i.e.:-(i) 'Receivable Purchase Facility' between a 'Supplier and OC dated 11.07.2....
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....hearing both sides". 9. In view of the observations made by Hon'ble Delhi High Court as well as the Hon'ble NCLAT, we heard both the Ld. Counsel extensively on the issue as to whether the documents ought to have been properly stamped under the provisions of the Indian Stamp Act and whether non-stamping of the said documents are fatal to the present case. 10. Mr. Mohit Chaudhary, Ld. Counsel for the Applicant in IA No. 1408/2020 (Respondent/Corporate Debtor) submitted that Section 3 of the Indian Stamp Act mandates affixation of stamp as per Schedule 1. He further submitted that Section 18 of Indian Stamp Act mandates that a document executed outside India must be stamped within three months. He further submitted that under Section 35 of the Stamp Act the instruments which are not duly stamped are inadmissible in evidence. Section 35 of the Stamp Act reads as follows: "35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such per....
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....an't be accepted in evidence, then also alleged debt and default are proved beyond doubt. The application filed under Section 7 is complete.' The Ld. Sr. Advocate also relied upon a Judgment of Hon'ble NCLAT New Delhi Bench, in the case of 'Lalan Kumar Singh, Executive Director (Under Suspension) & Shareholder of M/S. GPI Textiles Ltd., vs. M/s. Phoenix ARC Pvt. Ltd. & Anr.' [CA (AT) (Ins) No. 485 of 2018], wherein it is held: 'The assignment cannot be challenged in the petition under section 7 and that too by a party which had knowledge of 'assignment deed' as back as in the year 2012, and when the same was never challenged before a court of competent jurisdiction' The Ld. Sr. Advocate further relied upon a Judgment of Hon'ble NCLT Mumbai Bench, in the case of 'Vistra ITCL India Limited v. Satra Properties (India) Limited', wherein it is held: 'Application without getting into the issue of stamp duty as it is irrelevant and uncalled for in a section 7 application more so when the 'debt' and 'default' are proved otherwise without looking into those documents' 12. Having heard the Ld. ....
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....ta, Ld. Sr. Advocate appearing on behalf of the Applicant had broadly submitted that the debt has been assigned in favour of the Applicant and the Applicant is an Operational Creditor as defined under Section 5(20) of IBC. Mr. K. Dutta submitted that M/s. Sizer Metals Private Limited (supplier) entered into a Factoring Agreement/Receivable Purchase Facility (RPA) on 11.07.2017 which was executed on 01.08.2017 assigning all the receivables (present and future) in relation to supply of goods and services to the Applicant. This was duly intimated to the Respondent and was duly acknowledged by the Respondent/Corporate Debtor on 03.05.2018. In terms of the said assignment, all dues payable by the Respondent to the supplier in pursuance of different sale contracts stood assigned to the Applicant. He, therefore, submitted that the operational debt in question pertains to the payment for tin ingots and ferro-alloys supplied to the Respondent by the supplier which relates to a claim for goods and services as specified under the operational debt as per Section 5(21) of IBC. He relied upon the judgments of the Hon'ble Supreme Court in the matter 'Macquarie Bank v. Shilpi Cable Technol....
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.... Operational Creditor. d) Copy of the email proposing settlement dated 17.01.2020 addressed by the Counsel for the Corporate Debtor to the Counsel for the Operational Creditor. e) Copy of the email dated 08.02.2019 whereby the Corporate Debtor admitted its liability to pay outstanding debt to the Counsel for the Operational Creditor. f) Copies of emails between 27.02.2019 and 08.03.2019 regarding payment of dues and settlement regarding the same. Mr. K. Dutta, Ld. Sr. Advocate submitted that the Respondent/Corporate Debtor received the notice of Assignment of Debt dated 03.05.2018 and had duly acknowledged the same. He further submitted that vide e-mail dated 31.07.2018, the Respondent agreed to make the payment to the Petitioner as per the notice of assignment. He also refer to e-mail dated 17.01.2020 addressed by the Counsel for the Corporate Debtor to the Counsel for the Operational Creditor proposing one time settlement. Mr. K. Dutta, Ld. Sr. Advocate relied upon e-mail dated 08.02.2019, whereby the Corporate Debtor admitted its liability to pay outstanding debt to the Counsel for the Operational Creditor. Ld. Senior Counsel contended that th....
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....mitted that the Receivable Purchase Agreement was executed in 'Singapore' and therefore, the requirements under the Factoring Regulation Act, 2011 need not be complied with the Petitioner is not seeking to enforce the Factoring Agreement but has initiated an action under the IBC for initiation of CIRP against the Respondent/Corporate Debtor. We find force with the submissions made by Mr. K. Dutta, Ld. Sr. Advocate and hold that the provisions of Factoring Regulation Act, 2011 will not be coming into play in the present case. 17. In view of the abovementioned discussions, we are of the considered view that the Petitioner has established that the Corporate Debtor has defaulted in making the payment and therefore the present application under Section 9 of IBC ought to be admitted. Accordingly, the instant application bearing IB No. 2688/ND/2019 is admitted. 18. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 19. Since the Applicant has not proposed the name of the IRP, this Tribunal appoints Mr. Brijesh Singh Bhadauriya as Insolvency Resolution Professional, who is....
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....nforcement of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor." [Explanation.--For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period;] However, during the pendency of the moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder: (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupte....