10. It is also stated that on verification of the accounts of the Corporate Debtor, RP observed the following amounts were paid against the invoices of the Applicant. Payment under S1 No. 1 to 6 below were remitted directly from the accounts of the Corporate Debtor at Vijay Bank in India to the accounts of the Applicant. Payment under Sl. No. 7, the was paid by the director of the Corporate Debtor. Serial No. 8 below is the amount credited after settlement of disputed invoices:

11. It is stated that as per the books of accounts an amount of Rs. 91,05,9926 equivalent to USD 1,41,847.05 is only payable to the Applicant, which is the amount reflecting in the audited financial statements of the Corporate Debtor. This fact was also confirmed by this Tribunal in the judgment while admitting the application. The applicant has not disputed the fact that no payment has been received from the corporate Debtor. It is also stated that the present claim by the Applicant is arising out of the amount already paid by the Corporate Debtor but adjusted by the Applicant against the dues of Matheel.  The RP is not competent to accept a claim which is already paid in the books of accounts of the Corporate and acceptance of any such claim would be in violation of IBC and detrimental to the interest of other creditors of the Corporate Debtor.

12. It is stated that the Resolution Professional has only relied on the amount transferred by the Corporate Debtor to the accounts of the Applicant for the purpose of verification of claims. The Applicant has also not disputed the receipt of such amount from the Corporate Debtor. Therefore, there is no discrepancy with respect to the receipt of payment by the Applicant as advance remittance. It is also stated that the accounts of the Corporate Debtor for the financial year ended on 31/3/2019 were audited on 25th July, 2019 even before the admission of CIRP by this Tribunal vide order dated 7th November 2019. RP after arriving at an opinion based on the guidelines issued by IBBI appointed a forensic auditor Mr. T. Narayanan, Partner of M/s T. Narayanan & Co., Chartered Accountants and having an ICAI certification for Forensic audit to conduct the forensic audit of the transactions, which he has carried out and report filed.

Counter of the Respondents No. 2 & 3:

13. A Counter affidavit has been filed on behalf of the Respondents 2 & 3, inter alia, stating that the averments contained in the instant Application are false, baseless, frivolous, whimsical and without any legality. It is further stated that the sole purpose of the Application is for achieving malicious purposes in the guise of an application against a decision of the Resolution Professional, duly approved by the COC. The Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor commenced on 7th November 2019 by order of this Tribunal and the Resolution Professional (RP) was provided sufficient opportunity before coming to a conclusion that the claim ought to be rejected; except for a small amount as stated in the Minutes of 7th Committee of Creditors (COC) Meeting held on 10th November 2020. Under Section 25 of the Insolvency and Bankruptcy Code, 2016, it is the duty of the RP to maintain an updated list of claims. The records shows that there has been sufficient opportunity, the details provided in Audited Financial Statements for the Financial Year and opinion of the Independent Chartered Accountant resulting in coming to a conclusion that the Applicant/Operational Creditor is entitled to get Rs. 91.05 Lakhs, but as to the opinion of the Auditor, nothing  is required to be payable. The money remitted by the Applicant/Operational Creditor in 2016 and 2017 from the Bank  account of the Corporate Debtor were not fully credited by the Applicant/Operational Creditor to the accounts of the Corporate Debtor. The Applicant/Operational Creditor has added some untenable stories and submitted a statement which mixes the account of different entities in different countries, which clearly shows that it is a concoction of various transactions and most of which are not pertaining to the Corporate Debtor.

14. Since the Applicant/Operational Creditor supplied inferior goods, a dispute exists which has  already been pointed  out by  the  Respondent No.1/RP and is mentioned in the Counter to Section 9 Application, filed by the Applicant/Operational Creditor, much before the commencement of CIRP. Therefore, the entire amount relates to the inferior goods, must be written off. The disputed Invoices dated 9th October 2016 and 7th November 2017, are as under: -

The Applicant/Operational Creditor agreed that two-third of the amount covered by the invoices has been waived. However, the Respondent No.1/RP did not agree with this suggestion and hence the balance amount has been put under contingent liability. The e-mail dated 19th October 2017 and 20th October 2017 clearly establish the immediate communication between the parties in relation to quality issues.

15. Under Section 213 of the Companies Act, 2013 is a separate Code by itself, there are certain circumstances provided under Section 213 of the Act, which are required to be proved by Applicant. It is not clear as to how the Respondent No.1 who is with limited power for a limited period, could be saddled with the need for answering allegations in an Application made under Section 213 of theseeking investigation of the affairs of the Corporate Debtor. Evidently during the CIRP period for almost 460 days (approximately) even after eliminating any exclusion of period on account of COVID-19 lockdown, the maximum period specified under Section 12 of the I&B Code has expired. It is also stated that there are no avoidance transactions falling under Section 43, 45, 50 and 66 of the I&B Code. Certainly, from 7th November 2019 or even much prior to such date, the Corporate Debtor was in operation, only to a minimum extent. The aforesaid respondents further reiterate that the inherent powers of the Authority cannot be applied for the mere asking of the same unless it prevents an abuse of power or the same has been filed for the purpose of advancing justice. A perusal of the four invoices referred to and relied upon by the Applicant in their Application under Section 9 of I&B Code, makes it clear that the total amount therein is USD 10,12,207.21/-. As against this, the three remittances made in October 2016 and January 2017 aggregate to USD 894,000/-.

16. It is further admitted by the Applicant/Operational Creditor, themselves, that the invoices referred to in Para IV(2)(l) and (m) are disputed and no amount is payable on account of these invoices and that they do not form part of the claim. The respondents contended that no claim could be added against the said invoices and, therefore, to that extent also the claim is unsustainable. It is also stated by the respondents that it is only after thoroughly verifying the facts and records, independent professional chartered accountant, statutory auditors of the Corporate Debtor, the Respondent No.1/RP and COC have come to a conclusion that only Rs. 91.05 Lakhs is to be admitted. The Applicant/Operational Creditor has moved the above-mentioned Application on 12th December, 2020. Therefore, there is nothing in this Application except a bald statement with respect to fraudulent and fabricated transactions, warranting an investigation into the affairs of the Corporate Debtor.

Rejoinder filed by the Applicant in reply to Counter
17. In the rejoinder it is stated that the crux of the counter filed by the 1st Respondent [RP] is that the Applicant has unilaterally [i.e., without the concurrence of the Company under CIRP i.e., NUI Pulp & Paper Industries Pvt. Ltd] adjusted the payments made by NUI towards dues of another Company i.e., Matheel. In certain occasions, NUI has also acknowledged the receipt which has been conveniently overseen by the 1st Respondent. The applicant has already set forth the detailed statement of Accounts in the matter. However, for the purposes of convenience and better understanding, it is essential for the Applicant to set forth the following:

18. It appears from the Chartered Accountants Report that the RP has admitted the balance in the books of account of NUI as 31/3/2019 (INR 91,5,993) as the claim amount. However, the corresponding dollar figure is mentioned as USD 1,41,847.05/- instead of correct figure of USD 1,47,734.51/-. Therefore, the dispute in claim amount is mainly on account of two aspects, firstly, relating to reduction on account of quality issue and secondly, on account of certain payment of its apportionment.

19. In regard to the dispute in claim amount on the account of quality issue it is sated that there is no dispute regarding the export of goods by the applicant to NUI for the six invoices. There are many correspondences between the parties confirming that there was quality issues in goods sent through invoices 2017 INV09404 dated 3/9/2017 and 2017 INV10887 dated 13/10/2017. From the emails exchanged it can be seen that 2/3rd of the value of the invoices amount to USD 3,12,613.43 was as reduction on the disputed invoices. The Chartered Accountant after inspecting all the records opined that the manner in which the amount is disputed are to be dealt with the claim are given in the table below: -

20. It is also submitted that the account audit team have not commented upon the interest claim made by the applicant since the interest if any will have to be calculated on the claim finalized by the Tribunal.

21. We have heard the learned counsel for the Applicant, learned counsel for R2 & R3 (the Suspended Directors) as also the Resolution Professional and had gone through the documents produced on record. The reason for rejection stated by the Resolution Professional in her reply statement is that as per the books of accounts of the Corporate Debtor an amount of Rs. 91,05,993.26/- equivalent to USD 1,41,847.05 is only payable to the Applicant, as this amount reflects in the Audited Financial Statement of the Corporate Debtor. The excess amount claimed by the Applicant has already been received by them from the Corporate Debtor and this amount was adjusted by the Applicant against the dues of Matheel. Hence the Resolution Professional has not accepted that amount which has already been paid.  If that amount is also accepted by the Resolution Professional, that would be violation of the IBC and detrimental to the interests of other creditors of the Corporate Debtor. Moreover, the applicant has not disputed the receipt  of such amount from the Corporate Debtor.

22. For the aforesaid reasons, we do not find any reason to entertain this application and pass any orders. Hence this IA No. 33/KOB/2021 is dismissed.

Dated this the 20th day of  December, 2021