Page 454 - IBC Orders us 7-CA Mukesh Mohan

Order Passed under Sec 7
By Hon’ble NCLT Chandigarh Bench
The process fee and interest accrued shall be due and payable by the seller on the repayment date.

25. Most important is the clause of the agreement i.e. 2.1(d) that all disbursements made under this

facility shall be on a with recourse basis to the Seller. Sub-clause (e) of sub-section (8) of Section 5 of the
Code includes with the definition of term 'financial creditor', the receivables sold or discounted other than
any receivables sold on non-recourse basis. The present is a case, where the agreement pertains to the

facility to be on a with recourse basis to the Seller and not on a non-recourse basis.

26. Coming to the contention that the goods were released despite the petitioner vested with right to
withhold the goods in the absence of the payment As per clause 8.3 of the agreement, any lien shall

extend to cover the cost of recovering any sums due under the agreement and in connection with the
relevant goods and for that the petitioner would have the right to sell the relevant goods by public auction
or private treaty, without notice to 'Seller' and 'Buyer' the petitioner's right to lien shall survive delivery of

relevant goods.

27. This contention can be straightaway repelled by referring to the letter Annexure I(T), dated
04.09.2016 sent by the "Corporate Debtor" to the petitioner. A story has been developed in this notice that

the representatives of the petitioner in its office in Mumbai have stopped giving credit for the supply of
goods to the African countries but that subject is not at all relevant to the issue Reference was also made
to certain buyers from Malawi, where the payments were made to the 'Financial Creditor' on time. To

highlight the stand of the respondent, it is stated in the notice sent by the respondent as under:-

"We have spoken to our buyer who is very upset and unhappy with your approach towards the agreement
and deal and he has shown his clear picture that every delayed shipment has put him in good losses and

further YM Power Machineries payment was supposed to pay from first three containers payment as was
planned by him, but due to delayed delivery by Maersk (Petitioner), he is yet to get the payment from
ESCOM and requested Mr. BRUGE in MAERSK Africa office with copy to Mumbai office to allow him to

pay you the money for YM Power in few instalments with one immediate payment of USD 50,000 from the
total invoice (ready to pay interest on delayed payment). Further he assured that he is ready to pay full

payment to Sunrise (Maersk) for the 4th container of Nuts and bolts within 10 days of handling over the
container.

To ease and close the matter, we request you to claim the 80% payment + Interest from our buyer which
has been funded to us against the said two containers payment under discussion, which means instead of

185200.00 USD, you please consider taking USD 148160.00 USD + Libor interest applicable from our

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