Kushal Polysacks Pvt. Ltd. vs Samarth Fablons Private Limited

Per Bidisha Banerjee, Member (Judicial):

The Court convened through hybrid mode.

Ld. Counsels for the parties were heard at length.

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:

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.

j. OC as a Del Credere Agent (DCA) of Indian Oil Corporation Limited (IOCL) as will appear from DCA Agreement dated June 22, 2010 stood guarantee for payment of the total amount of value of the goods/polymer granules which was sold by IOCL to its customers (here CD) [Clause 5.1.1 of DCA Agreement at Pg-43 of CP].

k. OC is solely responsible to recover dues from customers of IOCL. Payment made by OC on behalf of the CD to IOCL has been credited against the account of the CD and hence the present dues are limited between the CD and the OC. IOCL has already realized the default committed by the CD from the OC.

l. The payment for the goods supplied and sold by IOCL to its customers through the recorded DCA which, in the present case is OC, will appear from Clause 5.2 of DCA Agreement at pages 44 of CP.

m. On September 23, 2021, CD being one of the customers of IOCL issued a letter to IOCL tagging OC as the authorized DCA in respect of the transaction for supply of goods by IOCL/seller to CD/ buyer/customer (pg-50 of CP). CD thereafter submitted document before IOCL and official email of CD (pg-51 of CP) is dheerajagarwal@beekaygroup.co and thus the CD always accepted the terms and conditions of the DCA Agreement.

n. From the Financial Year 2011-12, the CD started to lift/buy/purchase goods from IOCL and tagged OC as the registered DCA. IOCL raised invoices upon CD with copy marked to OC. Particulars of the invoices will appear from the ledger statements for financial year 2023-24 (pages 241-244 of Rejoinder of CP) wherein the Code Number of OC as the DCA has been recorded.

o. Clause 5.2 of DCA agreement (pg-44) also provides that DCA will be responsible to ensure timely payments within 48 hours, for the goods supplied and sold by IOCL to its customers and failing which high rate of interest @ 36% per annum will be levied upon DCA by IOCL apart from the right available to IOCL to invoke the performance back guarantee or to encash the cash deposit furnished by OC/DCA.

p. Clause 5.2.5 of DCA further provides [Pg-44 of CP] that the recovery of money from the customer will be the exclusive responsibility of DCA and IOCL is not responsible for the same but if the customer fails to pay the value of the goods supplied to IOCL, the recorded DCA will have to pay the money on behalf of the customer to IOCL, and thereafter, the recorded DCA will be responsible to recover the same from the customer.

q. It is admitted that the CD, as the customer of IOCL, did not pay the entire amount payable to IOCL during the financial years 2011-12 to 2023-24 and it was found that a sum of Rs.18,26,33,734/- was unpaid by CD to IOCL, which was paid by the OC to IOCL, on behalf of the CD and therefore, OC as the DCA was compelled to make such payment to IOCL on behalf of CD.

r. It is further claimed that as CD was unable to make payment for the goods purchased from IOCL, OC as the DCA had to come forward to make such payment, failing which huge interest component and penalty would be levied upon OC. The OC would be held responsible for payments otherwise IOCL would invoke the Bank Guarantee and shall charge an interest @ 36% p.a., which CD was well-aware.

s. Accordingly, statutory notice under Section 8 of the IBC dated July 6, 2023 was issued by the Advocate of OC upon CD. The Ld. Advocate of CD gave a combined reply to the statutory notice dated July 6, 2023 which was issued on behalf of OC and another statutory notice dated July 5, 2023, which was issued on behalf of OC but to another entity namely, Shree Ram Electrocast (Jharkhand) Private Limited (hereinafter referred to as ‘SAMARTH’), which is the CD in another IBC petition before this Ld. Tribunal being CP(IB) No.15/KB/2024. The combined reply of two statutory notices is annexed at pg-66-352 of CP.

t. Date of Default is March 31, 2023 (Para 18 of Page 24-2 of CP), the reply of the statutory notice 792, 805 and 806 of CP.

u. The claim of OC is admitted by CD as will appear from email dated July 4, 2023, which was issued from the official email ID of CD, namely, dheerajagarwal@beekaygroup.co, one of the director of the CD.

w. In the sur-rejoinder filed by CD affirmed on July 29, 2024, CD has stated that email dated July 4, 2023 was not issued by CD because this email has been issued from dheerajagarwal@deekaygroup.co. Aforesaid attempt to deny the admission by way of an affidavit of the CD is complete fraud, upon this Tribunal. This stand of CD is false and incorrect because CD has registered the same email ID, i.e. dheerajagarwal@beekaygroup.co before IOCL while submitting its documents for registration, thus, CD cannot disown its own email ID i.e. dheerajagarwal@deekaygroup.co. From the very inception, the CD had maintained the entire transaction from this registered Email of said Dheeraj Agarwal, one of the directors and authorized person of CD, with the IOCL, and not from any other email.

y. It is urged that this Adjudicating Authority is not empowered to adjudicate or decide set off or counterclaim which is beyond the jurisdiction of the Adjudicating Authority as has been authoritatively held in several judgments/decisions as under:-

ii) The Board Resolution dated 18.11.2022 of p.35 of CP appears to have been signed by Mr. Naresh Kumar Agarwal, as Director, authorizing Mr. Saumil Dutta, inter alia, to represent and file “IBC proceeding or any recovery proceeding against those attached listed companies before the competent court of laws …”

iii) However, no such list of companies has been disclosed against whom Mr. Dutta is allegedly authorized to file proceedings.

iv) Therefore, there is no valid authorization in favour of the said Mr. Dutta to file the present petition against Samarth Fablon Pvt. Ltd (“Samarth”).

vi) Both the directors of OC/Kushal resigned from the company on 22.11.2022 immediately after the alleged authorization. There is no authorization from the existing Board of Directors of the Company to initiate the present proceedings that was registered on 19.01.2024. As such, the present proceedings is not maintainable and should be dismissed.

b. The claim of OC/Kushal arises out of sale of goods made by IOCL under invoices raised by IOCL. There is no case of guarantee made out in the Petition. Invoices claimed to be outstanding have not been disclosed or identified.

ii) Demand Notice by OC/Kushal dated 05.07.2023 (pp.480-506) where, at page 504 under “(viii) List of documents attached to this application in order to prove the existence of operational debt and the amount in default”, the OC has listed “1. Statement of Accounts” and “2. Bills”.

iii) The OC has also issued Form No.4 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 which requires “(b) a copy of an invoice attached with a notice in Form 4”.

iv) The OC has admitted that its claim arises from bills raised against supply of polymer granules by IOCL to Samarth. OC has annexed no invoice whatsoever. The statement of sales produced by OC at page 53 of CP shows sale amount of more than Rs.2,138.50 crore from 2011-12 till 2023-24.

vi) The CD/Samarth relies on the following judgments for the proposition that if the claim of an Operational Creditor is based on invoices claimed to be outstanding, then such invoices must be made part of the notice under Section 8 and also in the petition a. Neeraj Jail vs Cloudwalker Streaming Technologies Ltd – reported in 2020 SCC Online NCLAT 445- para 43 – 46, 68, 71, 81.

DAE leasing (Ireland) 8 Ltd vs Turbo Megha Airways Ltd – CP(IB) No.210/0/HDB/2022 - 08.05.2024 – Para 29-32.

c. OC/Kushal is using the present proceedings for purposes other than insolvency resolution (family disputes) and as recovery tool.

ii) The CD relies on the following judgments for the proposition that IBC proceedings cannot be used as a recovery tool against solvent companies –

d. There are serious disputes regarding the claims of OC. OC and CD are admittedly family companies and there are several family disputes between the promoters, pending before Civil Court.

ii) The brothers entered into 2 family settlements, first on 11.12.2011 (pages 53 – 58 of Reply) and second on 27.08.2018 (pages 90 of Reply). Joint Family companies and assets were divided under such settlements. It is evident that all transactions inter se the families and companies were settled under such global family settlements.

iii) Kushal itself has contended that “The said sum of Rs.12 crore was in fact payment made under the said terms of settlement/partition. The said sum of Rs.12 crore was paid from the account of the corporate debtor into the account of the operational creditor, Kushal Polysacks (P) ltd having regard inter alia to the fact that the corporate debtor was a company held, owned, managed and controlled by the branch of Bishnu Agarwal while the operational creditor is … by the branch of Naresh Kumar Agarwal.” (Para III(B) (k) – (1) pages 15 -16 of CP)

iv) Therefore, it is an admitted position by the OC/Kushal that both OC and CD are family companies that have been divided between the brothers under a family settlement. There is admittedly disputes regarding the family settlement and the promoter of OC has filed a civil suit claiming reversal of shareholding and assets of the group companies. The OC/Kushal has also admitted that large sums of payment made between family companies were towards family settlement.

vi) The said Naresh Kr Agarwal also filed a civil suit before the Hon’ble High Court at Calcutta, being CS No.127 of 2020. The plaint in such suit was never served upon the defendants. The short cause title of the said suit, which appears on the website of the Hon’ble Court, appears to be identical to the short cause title of the Alipore Court title suit. Samarth filed IA (IB) No.393/KB/2025 seeking copy of the plaint. However, OC/Kushal has refused to disclose the same. This Hon’ble Tribunal should draw adverse inference based on the conduct of the OC.

vii) On the other hand, by email dated 01.08.2018 (p.138 of Reply) the OC/Kushal confirmed that a sum of Rs.12 crore paid by Samarth and a sum of Rs.3.30 crore from “Kushal Polysacks” had been credited to the account of Samarth as on 31.03.2018.

viii) Thus, the OC is trying to approbate and reprobate regarding the sums paid by Samarth towards supplies made by IOCL. There is clearly a dispute of more than Rs.15.34 crore regarding the sum claimed by the OC. The huge difference between the amount claimed by OC in the Company Petition and the amounts already admitted to have been received by OC towards supplies, shows the fraudulent nature of the Company Petition.

ix) This Tribunal cannot be called upon to adjudicate as to which transaction forms part of the family settlement and which does not. The issue of payments under the family settlement has been made a subject matter of the pending suit.

xi) Having failed to arrive at a settlement, it is evident that the IBC proceedings have been filed as a counter blast to such failure. IBC proceedings cannot be used to settle scores in family disputes. Samarth relies on the following judgments –

e. OC/Kushal has all along acted as an agent of IOCL. Invoices for supply were raised by IOCL. Clain in the petition is arising out of invoices/supplies by IOCL. Therefore, OC cannot file present proceedings in its own name as per provisions of Indian Contract Act, 1872 and Transfer of Property Act, 1882.

ii) Under Section 230 of the Indian Contract Act, 1872, an agent cannot personally enforce contracts entered into by himself on behalf of principal. Therefore, Kushal claiming to be an agent of IOCL, has no locus to file the present proceedings in its own name.

iii) The Petition does not disclose any instrument transferring claims of IOCL in favour of Kushal. For such reason also, Kushal cannot claim under the invoices raised by IOCL. (Section 130 of Transfer of Property Act, 1882) The petition also does not disclose any proof of payment having been made to IOCL for the alleged supplies made by Samarth. Only ledger account, maintained by Kushal himself, has been disclosed, which is a self-serving document.

iv) Clause 5.2 of the DCA Agreement (Page 43 of CP) does not in any way assign any claims of IOCL to Kushal. Under Section 230 of the Indian Contract Act, Kushal is barred from filing proceedings in its own name and without specific authorization from its principal – IOCL.

f. There is no admission by Samarth for the entire claim of Kushal, as alleged.

ii) In the email dated 04.07.2023, there has been discussion regarding the claims and counter claims of all group companies. Therefore, no admission can be culled out against Samarth.

iii) To contend that NCLT has considered the issue of group-wise settlement of accounts reliance is placed on the following judgments:

iv) Furthermore, the OC has filed petition with a claim of Rs.18.26 crore whereas the OC seeks to rely on alleged admission of Rs.2,57,51,636 crore to contend that Samarth should be admitted to CIRP.

g. Judgments relied upon by OC/Kushal support the contention of Samarth –

ii) Para 14 of the said judgment states that the invoices raised by “Chemplast Sanmar Limited” mentioned that “payment in respect of this Invoices should be made only in favour of Madras Chemicals and Polymers. There is an interest payment of 21% per annum at Column No.3 and the same is seen in all the invoices.” However in the present case, there is no such noting in the invoices raised by IOCL.

iii) In para 16 – the Hon’ble NCLAT noted that the CD in that case had received debit notes from Madras Chemicals and Polymers which is absent in the present case.

iv) In para 56 – the hon’ble NCLAT observed that the DCA Agreement permitted the agent to file legal proceedings in the name of the supplier i.e. Chemplast Sanmar Limited and that too only for recovery of outstanding sums.

vi) Therefore, the above judgment actually supports the contention of Samarth that the present proceedings cannot be entertained and should be dismissed as barred by law.

vii) The judgment in Pederson Consultants India Pvt. Ltd. Vs. Nitesh Estates Ltd. – 2019 SCC Online NCLAT 422 – is wholly irrelevant in the present case. In that case the CD had raised disputes after issuance of demand notice. However, in the present case, there have been pending issues regarding adjustment of group of companies claims and counter claims. Further there is a huge disparity regarding the claim made by the OC while ignoring its email of 01.08.2018 where credit of Rs. 15.30 Crore was granted to Samarth.

We have heard Ld. Sr. Counsels / Counsels for the parties and perused the records.

a. The issues that fell for determination the following:

ii) Whether Kushal Polysacks is an agent of IOCL and as such it is entitled to file this Petition under Section 9 of the IBC, 2016 as an Operational Creditor against Samarth Fablon Pvt. Ltd. the Corporate Debtor.

iii) Whether there are pre-existing disputes between the parties which would render this Petition a non starter.

iv) Whether the present dispute stands already settled by way of a family settlement.

a. The authorization in question is extracted verbatim herein below for clarity:

b. It is discernible from the records and is not in dispute that Shaumik Dutta was duly authorized by Mr. Naresh Kumar Agarwal, vide Board Resolution dated 18.11.2022. (page 35 of the CP) to represent Kushal Polysacks in all IBC related proceedings before NCLT and NCLAT.

c. Admittedly, both Mr. Naresh Kr. Agarwal and Mr. Kushal Agarwal were Directors of the Company till they resigned on 22.11.2022.

d. Thus, as on the date of authorization (18.11.2022) they were fully authorized to appoint Mr. Shaumik Dutta to represent Kushal Polysacks Private Limited in the matters related to any IBC proceeding or any recovery proceeding against those attached listed companies before the competent court of laws and / or before this Bench and / or the Hon’ble NCLAT, New-Delhi, and to authorize him to file and execute and affirm such cases, replies, affidavits and / or appear before Department / Authority / Court and do all such deeds and things incidental to or connected with the same.

e. Page No. 35 of the Company Petition shows that Shaumik Dutta is duly authorized to act on behalf of the Company.

f. There is nothing on record to show that this Authority was revoked subsequently at any point of time.

Hence, we hold that

a. Determination of true nature of relationship between the parties:

ii) This principle was reiterated in [Prakash Roadlines (P) Ltd. V. Oriental Fire & General Insurance Co. Ltd. (2000) 10 SCC 64]; That the task of Court is to, upon an overall reading of the materials presented by the parties, discern the true nature of the relationship between the parties and the nature of the service provided.

iii) In the case of C.C., C.E. and S.T. Bangalore (Adjudication) & Ors. Vs. Northern Operating Systems Pvt. Ltd., it is held “ One of the cardinal principles of interpretation of documents, is that the nomenclature of any contract, or document, is not decisive of its nature. An overall reading of the document, and its effect, is to be seen by the courts.”

iv) In the case of B.K. Muniraju V. State of Karnataka & Ors., reported in 2008 (4) SCC 451, it was held “a sentence or a term in a contract does not determine the real nature of the contract. It is true that the Courts should not rewrite the contract while making an attempt to interpret it.”

To determine whether Kushal Polysacks is an agent of IOCL and entitled to prefer this application. It would be necessary to extract the Del Credere Associate Agreement (DCA) made on 22.06.2010.

A bare perusal of the Clauses extracted supra would exemplify and demonstrate that this DCA Agreement confers all the rights upon the IOCL, the principal and Kushal the present OC, acts as an Agent. The Agreement empowers the present OC alone to recover the dues from an allocated customer of IOCL. Such overt clause in the DCA agreement empowers the OC the sole Authority to file the present proceedings against the CD.

The DCA agreement between the IOCL and the DCA Kushal is explicit on the following:

IOCL is the supplier of goods which acts through its agent DCA (here Kushal)

Kushal Polysaks as Del Credere Agent (DCA) is

a. appointed by IOCL as one of its associates on Del Credere basis.

b. bound to secure against payments owned to IOCL by its customers (allocated customers including the CD Samarth).

Samarth is the allocated customer.

IOCL allocated the customer Samarth to DCA under the following process:

a. Samarth Fablon the Corporate Debtor is an allocated Customer, as a customer, it approaches IOCL for specified goods.

b. A customer is required to obtain registration with IOCL (the supplier);

c. The DCA facilitates such registration;

d. The IOCL at its discretion allocates customers to a DCA or to more than one DCA.

e. The allocated customers (here Samarth) then places indent through the DCA.

a. The DCA will then forward the indent to IOCL;

b. The IOCL depending upon production and availability of products, issue confirmation of indent to such Allocated Customers under intimation to the DCA.

c. The products would be sold by IOCL as per terms of sale decided by the IOCL;

d. Invoice shall be raised by IOCL.

e. Thus invoices are not required to be issued by the DCA.

a. The DCA shall stand guarantee for the full payment from the Allocated Customer (here Samarth);

b. The DCA shall forthwith security in the form of an irrevocable and (Anx. 19) unconditional bank guarantee in the format accepted by the IOCL;

c. Ensure full and timely payment by allocated customer to IOCL for the products purchased by Allocated Customer (here Samarth) from IOCL, shall alone be responsible for recovery of dues of IOCL from allocated customers.

d. In case IOCL fails to get timely payments from the customers, IOCL will recover its dues from the DCA with interest.

e. Thus, although issues are not raised by the DCA, it stands guarantee for the full payment from allocated customer and is liable to pay the IOCL if allocated customer fails to pay IOCL.

a. DCA shall have recourse to the allocated customer (here Samarth) but not to the IOCL (the Supplier).

b. Thus, DCA having paid the IOCL for the default of allocated customers can only sue the allocate customer (Samarth) and not the IOCL.

a. To allocate Customers to DCA.

b. Issue confirmation of indent to allocated customers under intimation to DCA.

c. Raise invoice upon the allocated customer tagging the DCA.

d. Issue bank guarantee (BG) from the DCA to ensure its prompt payments from the allocated customers.

e. Invoke the BG by reason of default by DCA to realize payments from Allocated Customers.

a. Thus, evidently and irrefutably, the DCA (here Kushal) as an agent of the IOCL, upon default in payment of an allocated customer (Samarth) to the IOCL (the Supplier) for the products sold and delivered by IOCL to the customer (Samarth) through DCA, against invoices issued by IOCL tagging the DCA, is bound to repay the IOCL and recover its dues from the customer (Samarth);

b. The IOCL has in fact assigned its right to sue, to the DCA.

c. Hence, this present petition filed by the DCA Kushal against the allocated customer Samarth, for payments, it has made to the supplier IOCL for goods supplied by IOCL to Samarth, and dues of Samarth towards payments against such dues, which are recovered by IOCL from DCA Kushal, can maintain this Section 9 application against the allocated customer (Samarth).

Chapter VIII of the Contract Act, 1872 deals with "Of Indemnity and Guarantee". Section 124 defines "Contract of indemnity" and Section 126 defines "Contract of guarantee". Section 126 which is relevant for the present case is as follows:

“Guarantee” defined under Section 126 of the Contract Act, thus:

In the present case Kushal the OC guarantees to perform its promise to “Creditor” IOCL to discharge the liability of a “third party” (allocated customer, here Samarth) the “principal debtor” who owes to the “Creditor” IOCL.

ii) Section 127 of the Contract Act reads thus:

iii) In Phonix ARC Pvt. Ltd. (citation) Hon’ble Apex Court has held

that

iv) We have noted that Clause 5.2.2, 5.2.3 and 5.2.4 are very clear that the Creditor Kushal or the DCA has undertaken to discharge the liability of Samarth in case Samarth fails to repay IOCL against the operational debt. Thus this Petition under Section 9 of IBC is clearly maintainable by Kushal as a Guarantor.

vi) Thus the decisions relied upon the CD, being Alturas Trading Corporation, and Radhakrishnan Sivadutta and Hindustan Fertilizer Corp. Ltd (Supra) will not apply here.

Here, Kushal is bound by its promise to the IOCL the “Creditor” for the benefit of the principal debtor Samarth which is the consideration for the guarantee.

The DCA Agreement Clause 5.2.2, 5.2.3. & 5.2.5 (extracted supra) are very clear that

Thus the DCA (Kushal) is bound to discharge the liability of the Allocated Customer. We have already noted its available recourse is only against the allocated customer.

Coming to the third issue whether pre existing dues would mar the prospect of this application, we have discerned the following:

ii) The family settlement was probably entered on 11.12.2011 amended on 27.08.2018;

iii) Section 8 Notice was issued on July 6, 2023.

iv) A Civil suit, being Title Suit No.722 of 2023 has been preferred in the year 2023 before the Learned Civil Judge (Senior Division) 4^th Court at Alipore.

vi) The suit was filed because Bishnu Agarwal had acted in breach of a family settlement had failed to pay the revised amount of Rs.21 crores as mentioned in the amended family settlement dated August 27, 2018.

vii) However, the amount, which is claimed to be default by CD, which is the subject matter of the present section 9 IBC application, being CP (IB) No.15/KB/2024, has not been claimed by Naresh Agarwal as the plaintiff in Title Suit No.722 of 2023.

viii) The civil suit being not filed for realization of the value of the unpaid debt of CD to OC arising out of non-payment for the goods supplied by IOCL to CD, has no bearing in the present case.

ix) Further, CD has admitted the dues of OC as will appear from email dated July 4, 2023, issued from the official email ID of CD, namely, dheerajagarwal@beekaygroup.co (page-51 of CP and page-14 of Rejoinder of OC).

xi) This email is issued from dheerajagarwal@beekaygroup.co which appears to be the registered email id, i.e., dheerajagarwal@beekaygroup.co before IOCL while submitting its documents for registration.

xii) This Adjudicating Authority is not empowered to adjudicate or decide set off or counterclaim which is beyond the jurisdiction of the Adjudicating Authority as has been succinctly held in several judgments/decisions cited in the matter which are as under:-

iii.2019 SCC OnLine NCLAT 549 [AP Coated Drums and Barrels Pvt. Ltd. vs. Haresh Dharmai] (Para 8).

xiii) It is also a settled law that personal affairs of Directors cannot bind the Company as the Company is a legal and distinct entity as held in:

We, thus, record absence of any “pre-existing dispute” that would render this petition a non-starter.

a. The DCA was executed on 22.06.2010.

b. The family settlement dates back to 2011, post DCA, but does not refer to any DCA agreement entered into by the CD Samarth with the IOCL / OC as a DC agent of IOCL.

c. Thus family settlement cannot have an effect of off-setting the dues that have admittedly emanated out of the DCA Agreement.

d. The defence of the CD is thus not tenable.

Conclusion

a. Thus, in view of the foregoing discussions, we deem it appropriate to admit the present company petition.

In view of the order passed in C.P (IB) NO. 14/KB/2024, the application vide IA(I.B.C)/393(KB)2025 is disposed of accordingly.

Accordingly, we pass the following orders:

The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor.

C.P.(IB)/14(KB)2024 to come up on 17.10.2025 for filing the progress report.

The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

Urgent certified copies of this Order, if applied for with the Registry of this Adjudicating Authority, be supplied to the parties upon compliance with all requisite formalities.