ORDER

Per: - Mr. Kuldip Kumar Kareer, Member (Judicial)

1. The present petition has been filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") by Adishank Chemicals Pvt. Ltd. (hereinafter called as “Operational Creditor”) praying inter-alia for initiation of Corporate Insolvency Resolution Process (CIRP) against Baerlocher India Additives Pvt. Ltd. (hereinafter called as "Corporate Debtor") by invoking the provisions of Section 9 of the Insolvency and Bankruptcy Code (hereinafter called " the Code") for resolution of an unresolved Operational Debt of Rs. 1,35,20,600/- as on 31.03.2023. The submissions of the Operational Creditor are as follows:

2. The Operational Creditor has been carrying on business with Corporate Debtor since years thereby supplying them with the material/ s and the Corporate Debtor has regularly raised the purchase orders towards upon the Operational Creditor towards the purchase of the materials. The goods have been duly received and consumed by the Corporate Debtor in the past, without raising any dispute in respect of the price, quality and quantity.

IN THE NATIONAL COMPANY LAW TRIBUNAL, COURT-II, MUMBAI BENCH CP(IB)/736/MB/2023

3. Vide Purchase Order No. 3100007983 dated 23rd June, 2022 (“Purchase Order”), the Corporate Debtor placed an order on the operational Creditor for the supply of goods.

4. As per the Purchase Order, the dispatch schedule was to be conveyed by email and the terms of payment was 30 days credit. The Purchase Order clearly mentions the delivery date as against each Material. The date of delivery as mentioned is the last date by when the delivery is to be made. The Corporate Debtor was to give 10 days’ notice prior to the requirement, for dispatch.

5. The Operational Creditor vide their email dated 24th July, 2022 informed Mr.

Ritesh Kumar, Purchase Manager of the Corporate Debtor, that the Operational Creditor have not received any call up from the Corporate Debtor about the Purchase Order and requested to send call-up immediately to dispatch -the material, as a minimum period of 10 days advance call-up was agreed to between the parties. However, there has been no response to the said email dated 24th July, 2022.

6. Thereafter, the Operational Creditor vide their email dated 10th August, 2022 informed Mr. Jayen Modi, Managing Director of the Corporate Debtor that 20 M.T. of the material was to be picked up/ lifted by Corporate Debtor in July, 2022 and the balance 20 M.T. in August, 2022, however till then the Operational Creditor had not received any call up from the Corporate Debtor.

The Operational Creditor once again requested to send call-up at the earliest to process the material, as a minimum period of 10 days advance call-up was agreed to between the parties. However, there has been no response to the email dated 10th August, 2022.

IN THE NATIONAL COMPANY LAW TRIBUNAL, COURT-II, MUMBAI BENCH CP(IB)/736/MB/2023

7. The Operational Creditor have time and again tried to telephonically contact Mr. Jayen Modi, Mr. Deepak Selvam and Mr. Ritesh Kumar, representatives of the Corporate Debtor for taking the delivery of the Material, but there was no response. On 22nd August, 2022, Mr. Mukesh Mehta, Head of Purchase of Corporate Debtor, spoke to the Operational Creditor and assured the Operational Creditor that within three to four days he shall revert and inform the Operational Creditor regarding the supplies. The Operational Creditor vide their email dated 22nd August, 2022 recorded the same in writing and also informed that the Operational Creditor are incurring losses and holding costs as the Corporate Debtor are not picking up the material. However, there has been no response to the said email dated 22nd August, 2022.

8. The Operational Creditor thereafter vide their email dated 3rd September, 2022 once again requested for a reply to their emails and to inform the Operational Creditor, the Corp