Whether on the basis of Deed of Exchange the Appellant can claim to be a Financial Creditor? – Cooperative Rabobank U. A. Singapore Branch Vs. Mr. Shailendra Ajmera – NCLAT New Delhi
The Appellant entered into a Master Sales and Purchase Agreement (MSPA) wherein it was agreed that upon acceptance by the Corporate Debtor of certain Bills of Exchange(BoEs). The Appellant would discount the BoEs and disburse the discounted proceeds to a third party supplier of the Corporate Debtor, Aavanti Industries Pvt. Ltd. (Aavanti). It was further agreed under the agreement that the Appellant will not have any recourse to Aavanti and would be able to claim the amounts due under the BoEs only from the Corporate Debtor. Accordingly, an aggregate amount of USD 107,376,972.90 (excluding interest and other charges) was payable by the Corporate Debtor to the Appellant under the BoEs. Subsequently, on the maturity of the said BoEs, the BoEs were presented for payment to the Corporate Debtor and were dishonoured due to non-payment. NCLAT held that the Bill of Exchange relates to supply of goods and whatever finance given by the Appellant is to Aavanti Industries Pte Ltd., Singapore and not to the Corporate Debtor. The Corporate Debtor has merely received the goods and therefore the Appellant is not a Financial Creditor but at best can claim to be an Operational Creditor as held by the Adjudicating Authority.
