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2025 Supreme(Online)(NCLT) 5174
NATIONAL COMPANY LAW TRIBUNAL
Bidisha Banerjee, Member (Judicial), Siddharth Mishra, Member (Technical)
Kushal Polysacks Pvt. Ltd. – Appellant
Versus
Samarth Fablons Private Limited – Respondent
C.P (IB) NO. 14/KB/2024
For the Appellants/Petitioners: Mr. D. N. Sharma, Sr. Adv., Mr. Niloy Sengupta, Adv., Mr. Ankit Agarwala, Adv., Mr. Sujit Banerjee, Adv., Mr. Ratnanko Banerji, Sr. Adv.
For the Respondents: Mr. Kanisk Kejriwal, Adv., Mr. Yash Badkur, Adv.
Operational creditors can initiate CIRP for unpaid invoices under IBC if their claims arise from goods or services supplied, regardless of family disputes or agreements regarding those payments.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 9 - Corporate Insolvency Resolution Process (CIRP) - Petition by Operational Creditor for initiation of CIRP against Corporate Debtor due to default of INR 18,26,33,734/- - DCA Agreement confirms OC's right to recover dues from the CD due to unpaid invoices - Existence of family disputes between parties does not negate claim - No pre-existing disputes affecting the admissibility of the petition - Petition admitted. (Paras 4, 5, 9, 12, 15)
(B) Operational Debt - Nature of operational debt arising from transactions confirmed by documented invoices - DCA acts as agent of IOCL and is entitled to claim on behalf of IOCL. (Paras 9, 10, 11, 12)
(C) Jurisdiction - Adjudicating Authority cannot adjudicate on set-off or counterclaims regarding family disputes, as this is beyond its jurisdiction. (Paras 10, 11)
| Table of Content |
|---|
| 1. operational creditor seeking cirp (Para 3 , 4 , 5) |
| 2. agency relationship through dca agreement (Para 6 , 8) |
| 3. admission of debt and absence of pre-existing disputes (Para 7 , 10 , 11) |
| 4. court's authority and order for cirp initiation (Para 12 , 14 , 15) |
ORDER
Per Bidisha Banerjee, Member (Judicial):
1) The Court convened through hybrid mode.
2) Ld. Counsels for the parties were heard at length.
3) This Petition has been preferred by the Petitioner / Kushal Polysacks Pvt. Ltd. (The Operational Creditor / OC) seeking initiation of Corporate Insolvency Resolution Process (“CIRP”) in respect of the Respondent / Samarth Fablons Private Limited (the Corporate Debtor / CD) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (the Code”) for a total default of INR 18,26,33,734/- (Rupees Eighteen Crores Twenty- six Lakhs Thirty-three Thousand Seven Hundred and Thirty-four only) as on 31.03.2023 as per particulars reproduced below:
| Sl. No. | Particulars | Amount in INR |
| 1. | Total amount due on account of payment made to Indian Oil Corporation Ltd. on behalf of the Corporate Debtor | 18,18,62,912.00 |
| 2. | Total interest paid to Indian Oil Corporation Ltd. on behalf of the Petitioner, as on 31.03.2023. | 7,70,822.00 |
| Grand Total | 18,26,33,734.00 |
4) Submissions of the Operational Creditor(OC):
a. OC is the Del Credere Agent (DCA) of Indian Oil Corporation Limited (IOCL), as will appear from DCA Agreement dated June 22, 2010 [pages.36-52 of CP].
b. As per the norms of IOCL, M/s Samarth Fablons Pvt Ltd (CD purchased goods/polymer granules from the IOCL, tagging the OC as their DCA.
c. As per the DCA agreement, any purchaser of good is required to raise indent, through their DCA with the IOCL and once goods supplied, IOCL will raise invoice upon the Purchaser, tagging the enlisted DCA. DCA is required to pay the Invoice within 48 hours, otherwise 36% interest will be charged upon the DCA or existing bank guarantee of DCA will be invoked in terms of Clause 5.2 of the DCA Agreement.
d. In the present case, CD the Purchaser after tagging the OC the Del Credere Agent (DCA) has been purchasing goods/polymer granules since the Financial Year 2011-12 to 2023-24 and OC has been continuously paying the value of the goods by maintaining running and continuous account.
e. The lastly found dues are of Rs.18,26,33,734/- only as on 30th June, 2023 which the CD was unable and neglected to pay even after repeated reminders from OC and Indian Oil, resulting of which the IOCL (Supplier) marked the CD (the Purchaser) as defaulter and banned it to lift any IOCL material Pan India basis since.
f. As OC is the DCA, invoices were raised by IOCL and some of the invoices had been annexed in CP at pages-57 to 70. Therefore, in the present case, question of any invoice being raised by OC directly upon CD will not arise because of the special nature of the DCA Agreement. In any event, operational debt under Section 5(21) of the IBC refers to claim arising out of goods or services.
g. In the present case, purchaser of goods/CD raised indents for purchasing granules upon IOCL through OC/DCA. Once IOCL approves the requisitioned indent received from CD and agrees to supply the goods, IOCL raises invoice upon CD with copy marked to the OC and on tagging the enlisted OC/DCA. All the details of the invoices have been set out in the ledger statements which were all part of the statutory notice dated July 6, 2023 issued by OC upon CD [Pages 480-471] The ledger statements have also been annexed to the main Company Petition.
h. At no point of time did CD raise any dispute against any single invoice raised by IOCL as mentioned in the ledger statements which were part of the statutory notice dt. 06.07.2023 also. This will appear from the reply to the statutory notice dt. 13.07.2023 [pages. 782-868] of the CP at.
i. That the IOCL followed SAP software whereby, each and every detail of the transaction always provided to CD which includes Invoices. Physical copy of the invoices were always forward
