DFF Tarim Gida San. Ve Tic. Ltd. Sti vs RB Impex Pvt. Ltd.

This petition has been filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 (herein after referred to as the ""Code""), praying for

Corporate Insolvency Resolution Process of the Respondent Company for its inability to liquidate its debt.

As per averments, the Operational Creditor based in Turkey, had exported apples to the Corporate Debtor in India. A container of 1015 cartons of

apples were supplied against invoice No. 785 055 for US$ 17762.50 dollars which is equivalent to Rs. 12,09,603.15 based on the prevailing exchange

rate as on that date. The applicant informed the Corporate Debtor vide an email that the goods had reached NHAVA-SHEVA and requested the

Corporate Debtor to take delivery of the goods. Payment was required to be made through their Banker's for release of the documents. However, at

request of the Corporate Debtor, fresh invoice was raised revising the amount to 1700 US$ and was sent directly the Corporate Debtor. The

documents were sent to enable the Corporate Debtor seek release of the consignment on the assurance that the payment would be made within 15

days.

It is the Operational Creditor's case that even after release of the goods, the Corporate Debtor has failed to make any payment giving rise to the

present proceedings. Notice under Section 8 of the Code was sent annexing the necessary document.

The Corporate Debtor on being served has put in appearance before this Bench and has filed its reply, resisting the prayer made. It is pointed out

that the Operational Creditor is guilty of suppression of various facts. It is argued that that the goods received, being perishable in nature, were

received in a rotten condition, which fact was immediately brought to the notice of the Operational Creditor. It is their case that this was not the first

instance of the Operational Creditor having supplied goods in such a condition. A prior consignment had also to be dumped as all apples had rotted

before the consignment was released. The Operation Creditor had acknowledged the Corporate Debtor's loss and proposed to supply them with a

fresh consignment to minimise their loss. It is pointed out that the consignment in question had initially been booked for another consignee. For reasons

best known the offer was diverted by the Operational Creditor. This was despite the fact that they were made aware that the Director of the

Corporate Debtor was traveling abroad. The expected date of arrival for the original consignee was 23-24th April, 2018. The consignment which

reached the port on 3rd May, 2018 could only be released to the Corporate Debtor on 17th May, 2018 upon the Director of the Corporate Debtor

having returned to India and after getting documents from the Operational Creditor. Photographs evidencing the condition of apples received have

been annexed showing that the goods had perished in transit. The surveyor's report with photographs and of the earlier in respect of this consignment

as well as that consignment have also been annexed to corroborate the condition of the goods received. It is argued by the id. Counsel for the

Corporate Debtor that the dissatisfaction in respect of the consignmeni was communicated immediately. The perished goods had to be dumped.

Ld. Counsel for the Corporate Debtor has also relied upon the messages exchanged. As per the email dated 24th May, 2018. The quality of the

goods supplied was even communicated through. the Turkish Embassy.

Dear Sir,

I kindly recommend you to get in. touch with either the Embassy of India in Ankara or

Ali OZDIN

Yeni Delhi Ticaret Musaviri

Commercial Counsellor

Turkish Embassy, Office of the Commercial Counsellor

E-mail:yenindelhi&ekonomi.gov.tr/www.ekonomi.gov.tr

Phone: 009.1 71 2687 9907

Fax: 0091 11 2688 9236

Address: Turkish Embassy, Office of Commercial Counsellor 50-N, Nyaya Marg,

From: Turkish Embassy in new Delhi [[email protected]]

Sent: 24 May 2018 17:46

To: Yenidelhi Ticaret Musavirligi

Subject: ilt: party Dispute-TURKEY

Gonderen: Ritesh Gidwani [email protected]

Gonderildi: 24 May 2018 Persembe 17:43

Kime: Turkish Embassy in New Delhi

Konu: Party Dispute- TURKEY

Dear Sir,

We have got the shipment from turkey which have been dumped into the garbage.

My shipper had given this furit to me from some other party as he told me that the co

But we received the shipment on 3-May the time I was not in india, got this container now the shipper is threatening me and abusing we

would request you to speak with

After looking at the fruit we can not pay the shipper of the amount he have made the

Ld. Counsel for the Operational Creditor submits that the no plausible defence has been received and it is an attempt is being made only to evade

payment, despite the fact that at least 50% of the goods were received in a proper state.

A perusal of the photographs on record as well as the surveyors report leaves no scope for doubt about the condition of goods received. A dispute

with respect to the liability to pay for the goods had been raised right since inception. It is beyond the scope of this Bench to compute how much of the

consignment had been salvaged. The only relevant fact to consider is whether any prior dispute had been raised. This fact is evident from the facts

and correspondence on record.

After hearing the Id. Counsel this Bench is of the opinion that in view of the prior dissatisfaction of the quality of goods supplied, there is existence

of a plausible dispute. Under such circumstance, the prayer for admitting this petition and initiating the Insolvency Resolution Process against the

Corporate Debtor is unsustainable.

Petition Dismissed.