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2023 Supreme(Online)(NCLT) 1173
An Application under Section 9 of the Insolvency and Bankruptcy Code, 2016.
IN THE MATTER OF:
Kodak India Private Limited [CIN: U99999MH1973PTC016767]
… Applicant/ Operational Creditor.
Verses M.S. Graphics Pvt. Ltd. [CIN: U22219WB1991PTC052177]
… Respondent/ Corporate Debtor.
CORRIGENDUM
1. In the Order dated December 19, 2023, some typographical errors have been found in the first page and the same are amended as under:
2. Rest of the order shall stand unchanged.
3. This corrigendum to be read along with the original Order dated December 19, 2023.
D. Arvind Bidisha Banerjee Member (Technical) Member (Judicial)
Signed on the 22th Day of December 2023.
An Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 IN THE MATTER OF:
Kodak India Private Limited [CIN: U99999MH1973PTC016767], a company incorporated under the provisions of the Companies Act, 1956, having its registered office in Mumbai, Maharashtra – 400 098.
… Applicant/ Operational Creditor.
Verses M.S. Graphics Pvt. Ltd. [CIN: U22219WB1991PTC052177], a company incorporated under the provisions of the Companies Act, 1956, having its registered office in Kolkata, West Bengal – 700 001.
… Respondent/ Corporate Debtor.
Date of Pronouncement: December 19, 2023.
CORAM:
SMT. BIDISHA BANERJEE, HON’BLE MEMBER (JUDICIAL)
SHRI D. ARVIND, HON’BLE MEMBER (TECHNICAL)
Appearance:
For the Operational Creditor:
1. Mr. Ratnanko Banerji, Sr. Adv., 2. Mr. T. Ray, Adv., 3. Ms. R. Prakash, Adv., 4. Mr. A. Choudhury, Adv.
For the Corporate Debtor:
1. Mr. Jishnu Chowdhury, Adv., 2. Mrs. O. Chatterjee, Adv., 3. Mr. S. Basu, Adv.
For the Petitioner:Tanmoy Roy
For the Respondent:Rajib Ghosh
ORDER
Per: D. Arvind, Member (Technical)
1. This Court is congregated hybrid mode.
2. Heard the Learned Senior Counsel and Learned Counsel for both parties.
Factual Matrix:
3. This instant application is preferred under Section 9 of Insolvency and Bankruptcy Code, 2016 for brevity “I&B Code”, by Kodak India Pvt Ltd, (Operational Creditor/ Applicant / OC) against MS Graphics Pvt Ltd (Corporate Debtor/ Respondent /CD), seeking direction from this Adjudicating Authority to initiate Corporate Insolvency Resolution Process (for brevity “CIRP”) in respect of the Corporate Debtor.
4. Kodak India Pvt Ltd had business relationship with MS Graphics Pvt Ltd the respondent corporate debtor herein. During the course of business, based on various orders placed by the CD, the Operational Creditor has sold and supplied digital plates and chemicals to the Corporate Debtor.
5. Work / Purchase orders were placed by the Corporate Debtor in a running and continuous manner during the period from 27.06.2018 to 01.10.2021.
6. The invoices were raised by the Operational Creditor towards the sale and supply of goods which were accepted and acknowledged by the Corporate Debtor without raising any protest, demur, or objection.
7. The payments were made by the Corporate Debtor from time to time on ad-hoc basis on few occasions and on Invoice basis on few other occasions depending upon the fund’s availability and also in terms of an agreement dated 19.02.2019 which is called as “Payment Plan Agreement” executed between CD and OC.
8. In the course of business from 25.09.2020 to 09.08.2021 the Operational Creditor has raised several invoices against supply of goods amounting to sum of Rs. 6,26,93,986/- pursuant to the orders issued by the Corporate Debtor. Copies of the purchase orders issued along with invoices & debit notes for sale of goods are annexed as Annexure D to the application.
9. As per the work orders payment will have to be made within 120 days from the date of invoice. The Operational Creditor from 29.09.2020 to August 2021 received Rs.11,20,229/- as part payment towards the invoices raised by the Operational Creditor. However, till date a sum of Rs. 6,31,49,0000 is due as per the table mentioned below:
| Sr. No | Particulars | Amount in INR |
| 1. | Invoices raised from 25th September 2020 to 9th August 2021. | 6,26,93,986/- |
| 2. | Debit notes towards the Bank charges and interest charges etc. deducted by Bank for opening the Letter of Credit. | 15,75,606/- |
| Total (1+2) | 6,42,69,592/- | |
| 3. | Part payment received towards the outstanding invoices as stated herein above | 11,20,229/- |
| Total outstanding (1+2-3) | 6,31,49,363/- |
Chart indicating invoices and debit notes raised from 27.06.2018 to 09.09.2021 is in Annexure F to the application.
10. It is the claim of the Operational Creditor that the Corporate Debtor failed to make payment for the period 27.06.2018 to 31.10.2019 amounting to Rs. 12,11,16,376/-, consequent to which both parties executed a “Payment plan agreement” wherein the Corporate Debtor agreed to make payment of outstanding dues as per the terms and conditions mentioned therein.
11. It was agreed by the Corporate Debtor that they will continue to pay monthly dues within the credit period of 120 days from the date of invoice apart from paying the past dues within the time frame mentioned in the said agreement.
12. Subsequent to this agreement Operational Creditor received some payments which were adjusted towards the outstanding dues as per the agreed payment structure and after all the adjustments as stated above a sum of Rs. 6,49,36,363/- is still due towards invoices raised from 25.09.2020 to 09.08.2021.
13. Since the Corporate Debtor failed to make payments as per the payment plan agreement and also due to the Covid situation both parties agreed by way of an E-Mail dated 10.08.2020 that the mechanism of 1:1.3 will be put in place so that 100% will go towards current invoice and balance 30% will be adjusted towards outstanding payments. For Example, if OC sell and supply goods and issue I
