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2024 Supreme(Online)(NCLT) 1403
NATIONAL COMPANY LAW TRIBUNAL
SMT. BIDISHA BANERJEE, SHRI. D. ARVIND, JJ
TUF Metallurgical (P) Ltd – Appellant
Versus
Liquidator – Samir Kumar Bhattacharyya – Respondent
Company Petition (IB) No. 176/KB/2018
For the Appellants/Petitioners: Ms. Manju Bhuteria, Adv., Ms. Srishti Agrawaal, Adv., Mr. Vaibhav Mahajan, Adv.
For the Respondents: Mr. Rishav Banerjee, Adv., Mr. Rahul Auddy, Adv., Mr. Aditya Gooptu, Adv.
Claims for unpaid operational debt and CIRP costs must be recognized based on the nature of transactions during corporate insolvency processes.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Sections 42 and 60(5) - Corporate Insolvency Resolution Process (CIRP) - Claims by Operational Creditors - Applicant sought recognition of its claim as CIRP costs based on Section 53(1) - Corporate debtor’s failure to supply goods led to disputes over payments and damages - Liquidator's decision to classify certain amounts as operational debt held to be legally sustainable - Mismatch in applicant’s and liquidator’s records arose in the claims process, leading to direction for reconciliation. (Paras 30-40)
(B) Operational Debt - Definition and recognition of advance payments for goods as operational debt clarified, strengthening the position of operational creditors during CIRP proceedings. (Paras 43-45)
| Table of Content |
|---|
| 1. facts leading to the corporate debtor's inability to fulfill contracts. (Para 4 , 5 , 6 , 7 , 9 , 10) |
| 2. arguments concerning the treatment of operational debts and claims. (Para 22 , 23 , 25 , 27) |
| 3. court's observations on claims' classification and admissibility. (Para 30 , 31 , 35 , 36 , 38 , 40) |
| 4. conclusion regarding the application's disposition. (Para 41) |
ORDER
Per: D. Arvind, Member (Technical):
1. The Court congregated through hybrid mode.
2. Heard Ld. Counsel for the parties.
3. This is an application preferred by TUF Metallurgical (P) Ltd. (hereinafter referred as Applicant/TUF) under Section 42 read with 60(5) of the Insolvency and Bankruptcy Code, 2016 , for brevity “IBC” against Mr Samir Kumar Bhattacharyya the liquidator of the corporate debtor Impex Metal & Ferro Alloys Limited (hereinafter referred as Respondent/Liquidator seeking following reliefs:
a) Admit the claims of the Appellant to the full extent of Rs.4,94,11,490/- so submitted by the Appellant vide Form – G (Liquidation Process Regulations) dt. 14.03.2019 as ‘Insolvency Resolution Process Costs’ to be paid in priority as per Section 53 (1)(a) of the Code at the time of distribution of proceeds from liquidation; and
b) Direct the Ld. Liquidator to immediately release and pay an amount of Rs.1,06,06,494/- as the admitted CIRP Costs and non-disputed portion o0f the aforesaid claim to the Applicant;
c) Direct a Stay Order restraining the Liquidator from proceeding with further distribution of liquidation proceeds realized out of the sale of the liquidation assets, amongst the stakeholders, until the disposal of this Appeal;
d) Any other Order(s)/Direction(s) which this Hon’ble Adjudicating Authority may deem fit and proper in the facts of the present matter.
Factual Matrix:
4. The corporate debtor M/s. Impex Metal & Ferro Alloys Limited was admitted into Corporate Insolvency Resolution Process (CIRP) by this Adjudicating Authority on 09.03.2018 and accordingly CIRP commenced.
5. The applicant claims to have placed an order to purchase 2000 M.T. of Ferro Silico Manganese at the rate of INR 63,980/M.T. vide Purchase Order dated 25.06.2018 and the same was accepted by the corporate debtor to be supplied through its plant at Bobbili, Andhra Pradesh.
6. It is the claim of the applicant that as per the delivery terms, the aforesaid quantity of 2000 M.T. was to be delivered in 4 lots of 500 M.T. each and all the 4 lots were to be completed by the end of September 2018.
7. As per the payment terms contained in the purchase order, an amount equivalent to 50% of the value of goods was to be paid as advance and balance at the time of accepting delivery of the goods. Accordingly, TUF claim to have paid a sum of Rs. 11,10,33,980/- to the corporate debtor.
8. The corporate debtor supplied and delivered 1000 M.T. and raised 55 Tax Invoices in the month of August, 2018 for the said cumulative quantity of 1000 M.T. of goods delivered amounting to a contractual value of Rs. 6,40,44,000/-.
9. The corporate debtor failed to supply the remaining quantity of 1000 M.T. of Ferro Silico Manganese to applicant as a consequence of which, as per the books and ledger maintained by the applicant an amount of Rs.4,41,73,463/- is lying as advance in excess with the corporate debtor.
10. Corporate debtor has closed their plant and is no longer in a position to supply the remaining quantity of 1000 M.T. to the applicant. Meanwhile, applicant and corporate debtor entered and executed 3 ‘High Seas Agreements’ during October 2018 to March 2019 wherein the applicant imported and supplied 1148.97 M.T. of Manganese Ore to the corporate debtor for a total sale value of INR 2,54,72,761/-.
11. The Corporate debtor hired the services of clearing and forwarding agent for handling the cargo with respect to the aforesaid transaction but did not make payment for such cargo handling services.
12. The Corporate debtor paid an amount of Rs. 69 lacs to the applicant by lifting the quantity of only 298 M.
