NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH (COURT-II)

IN (IB)-540/ND/2023 IN THE MATTER OF:

Indospirit Distribution Limited Having registered office at :

B-230 Okhla Phase 1 Okhla Industrial Area New Delhi-110020 … Applicant/

Operational Creditor VERSUS Kristal Spirits India Private Limited Having registered office at :

JA814, 8^th Floor, DLF Tower A, Jasola District Center, New Delhi – 110025, … Respondent Corporate Debtor Section: 9 of IBC, 2016 Order Delivered on: 03.09.2025 CORAM:

SH. ASHOK KUMAR BHARDWAJ, HON’BLE MEMBER (J)

MS. REENA SINHA PURI, HON’BLE MEMBER (T)

PRESENT:

For the Applicant : Adv. Gaurav Mitra, Adv. Anand Shankar Jha, Adv. Sachin Mintri, Adv. Aarushi Mishra, Adv.

Abhilekh Tiwari For the Respondent : Adv Raj Singh Niranjan

ORDER

PER: MS. REENA SINHA PURI, MEMBER (T)

This Application is filed, by M/s Indospirit Distribution Limited (hereinafter referred as the Petitioner/ Operational Creditor/OC), against M/s Kristal Spirits India Private Limited (hereinafter referred as the Respondent/Corporate Debtor/CD), seeking initiation of CIRP, [Corporate Resolution Insolvency Process] under section 9 of IBC2. It is claimed by the OC that the CD has committed default in payment of operational debt of ₹ 2,82,02,473 comprising principal amount of ₹ 1,13,58,124 and interest of ₹ 1,68,44,349 charged @ 24% per annum.

2. The respondent CD is engaged in the business of manufacturing, distribution, and sale of alcoholic beverages. The petitioner is engaged in the business of providing clearing & forwarding and warehousing services in the State of Delhi. The Petitioner and the Respondent entered into a CFA (carrying and forwarding agent) Agreement³ dated 01.09.2017 with the Respondent. As per the Agreement, the petitioner was required to manage the Respondent’ stock of Indian Made Foreign Liquor (IMFL) brands in the Depot, including inventory, invoicing and account management.

3. It is stated by the petitioner that though the Agreement expired on 31.03.2019 and no extension was formally executed between the parties; the

2 Insolvency and Bankruptcy Code, 2016

3 Clearing and Forwarding Agency Agreement at Annexure A-2 of the Application respondent continued to receive and avail the services of the petitioner until 01.10.2019. However, the invoices raised by the petitioner remained unpaid. Since the last invoice is dated 01.10.2019, the date of default is taken as 01.11.2019. Calculation of the outstanding amount⁴ arising from the invoices raised between 01.11.2017 and 01.10.2019 is summarized below:

S No.	Particulars	Amount
A	Total Invoice amount outstanding	₹ 85,67,842
B	Total Excise Duty paid on behalf of CD (as part of services)	₹ 49,37,009
C	Part payment made by CD	₹21,46,727
X	Total principal outstanding (A + B – C ) as on 30.06.2023	₹1,13,58,124
	Y Total Interest @24% as on 30.06.2023	₹1,68,44,349
Total operational debt (X + Y)		₹ 2,82,02,473

It is further submitted that since the respondent did not make the due payment of its operational debt, a Demand Notice⁵ dated 07.07.2023 was issued under section 8 of the IBC, which was duly served to the respondent at its registered office.

4. The respondent has objected vide letter⁶ dated 22.07.2023 on the grounds of non-invocation of arbitration clause as provided in clause 18 of the Agreement and pendency of proceedings7 under Section 138 of the

4 As per part IV of the petition

5 Annexure A-11 6 Annexure A-12

7 Annexure A-5 - ongoing proceedings under Section 138 of the Negotiable Instruments Act, 1881, initiated by

the petitioner as two cheques ₹19,00,000 each, dated 31.07.2018 and 20.09.2019 had not been honoured.

Negotiable Instruments Act, 1881. It is also claimed that the demand notice is barred by limitation under the provisions of the Limitation Act, 1963.

5. Responding to the reply of the respondent to notice under section 8, the petitioner has contended that the existence of an arbitration clause does not preclude the maintainability of an application under the IBC,

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