In the matter of S.R.K. Chemicals Ltd.

BEFORE THE ADJUDICATING AUTHORIW NATIONAT COMPANY tAW TRIBUNAL AHMEDABAD BENCH CP(IB) 457 of 2018 Coram: Hon'ble Mr. HARIHAR PRAKASH CHATURVEDI, MEMBER (JUDICTAI) ATTENDANCE.CUM.ORDER SHEET OF THE HEARING OF AHMEDABAD BENCH OF THE NATIONAL COMPANY I.AW TRIBUNAT ON 27.112019 Name of the Company: Pacific Gulf Shipping (Singapore) pte. Ltd. Y/s. S.R.K, Chemicals Ltd. Section of the Companies Act : Section 9 of the Insolvencv and Bankruotcv Code

ORDER None for the Parties. The present case is taken up for pronouncement oforder.. The detailed order recorded separately, vide separate sheet. The petition is admitted by declaring Moratorium in respect of the Corporate Debtor Company viz. SRK Chemicals Ltd. CA Mr. Sunit Shah, is appointed as RP.

6fiI (HARTHIR PRAxAsd YEDI) MEMBER (JUDI9IAL) Dated this the 27th day ofNoveober, 2019.

BEFORE THE AI'JI'I'ICATING AUTHORITY (NATIONAL COMPANY LAW TRTBUT{ALI AHMEDABAD BENCH AHMEDABAI) c.P. (I.B.l No. 4S7|9/NCLT/AHM/2oIB

Coram: Hotr'ble Mr. Harlhar Prakash Cheturvedi, Member lJudiclalf In the mattcr ofi M/s. Pacilic GuIf Shipping (Singapore) pte. Ltd, 1O-Anson Road, # I 6 -06, International Plaza, Singapore-079903, (Authorlsed Stgnatory) C/o. Mr. Sudarshan Gujar, 4 15, Vardhman Chambers, 17, Cawasji Patel Street, Fort, Mumbai-400001. .....Petitloner/Olerational Creditor Versus M/s. S.R.K. Chemicals Ltd. NeelkaathBBZS60, Zarrda Chowk, Gardhidham, Kutch, Gujarat, India-37O20 l. .....Respondent/ Corporate Dettor

Aopearance: Mr. Jaimin R. Dave, Advocate for the Petitioner. None for the Respondent(s).

Otder delivered on 27s November, 2O19.

,td "t' c.P. (LB.) No. 45719/NCLT/AHM/20r8

ORDER [Per: Shri Harihar Prakash Chaturvedl, Member (Judictal]]

1. The present I.B. Petition has been preferred by M/s. pacific Gulf Shipping (Singapore) Pte. Ltd. being an Operational- Creditor. The present petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency ard Ba_nkruptcy Ruies, 2016 (herein after referred to as a "Code') seeking for initiation of Corporate Insolvency Resolution Process fCIRP" in Short) in respect of the Corporate-Debtor-Company namely, M/s. S.R.K. Chemicals Ltd win following relief/ directions: (t) Io admit Application and. comlnrrt nicortc st ch d.ecision to tlrc Operatlorlrc,l Credltor and Corporate Debtor, and to p(Es .tn order lor lnitiating Cofporate Insoluencg Resolutlon process algarinst the Cotporate Debtor. fil Io d.eclqre a tnoratorlulzn for the purposes refened to ln Section 74, under Sectlon 13 of the Insokrcncg and Bankntptcg Cod.e, 2O16 read. tuith other releuant sections utd. n es thereunden (iii) To cause d public olrnoullicemcllrt oJ tle initiatlon of corporate insohrcncg 1rrocess dnd. co,ll for the sabmission of claims under Section 73 and lS oJ the Insohrcncg and Bankntptcg Cod,e, 2O76 read. with other releudnt sec.ttons and rules tltereunder. (ia) To appoint an Insohnncg Resolution ProJesslonal, or czng other persofl as deemed fit fo-r this purpose bg thls Tribunal and. order him to take charge of the Corporate Debtorts assets utith all pouers to 6::,?!!,.ri !;i wT 'i conduct tts afJatrs in the course ol tle Corporate .=i J\ j \\t.' .-::i-'-'-': PaBe 2 of 16 c.p. (I.B.l r{o. 4S?/9/NCLT I AfiNtt21fi

Insohnncg Resolution process and. dlsffibrtttng the Corporate l)ebtorrs assets in accordance with Lout, (u) To take change o! tlu assets, propertles, stock ln trad,e and books of accounts of the Cotprororte Debtor, tf thts Mbuna.l nag constder llt as aa IRp trtth all pourera under Sections 17, lg and. 20 ol the I.B. Cod.e, 2O76 read. utlth ot E" releaorrrt sectlons and. ttles rcreund,er. (aa) To pass an order for unnding up and/or ttqutdattng the Corytorate Debtor. (uil) To pass an order.,for costs of the Appllcation, lncludlng Insohnncg process Resolnt#lon and llquldatlon costs.

2. The Petitioner/Operational-Creditor states that it is an international company based in Singapore and known as M/s. Pacific Gulf Shipping pte. Ltd. Tie Compary appears to be involved in the business of shipping and its registered address is at: M/s. pacijic Gulf Shipping (Singapore) pte. Ltd, 1O-Anson Road, # 16-06, Internationa-l plaza, Singapore-079903. The Company duly authorised Mr.Rohit Parmar, Mr. Saltosh Koli and Mr. Sudarsharr Gujar to be its Authorised Signatories and to act on its behalf vide its Board Resolution dated 3O.O1.2017. It is reported that the oIfice of its authorised signatory, C/o. Mr. Sudarshan Gujar is situated at: 415, Vardhman Chambers, 17, Cawasji Patel Street, Fort, Mumbai-4OOOO 1, India.

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C.P. (I.8.) No. 4s7l9/NcLT A*t tt2ot9 t

3. It is informed that the Respondent/Corporate Debtor Comparry, namely M/s. S.R.K. Chemica-ls Limited was incorporated on Og.l2.2OOS with the CIN: U24298GJ2OOSPLCO4Z229 and is engaged in the business of malufacturing different products of wood, cork, straw and plaiting materials. The Corporate_Debtor_Company, as per record is said to have authorised share capital of Rs.3,6O,0O,OOO/- (Rupees Three Crore Sixty Lakh only) arrd the paid-up share capital of tie company is Rs.1,99,O0,00O/- (Rupees One Crore Ninety Lal<h only). The registered offrce of the Corporate Debtor Company is situated at: Neelkanth B B Z S 60, Zand,a Chowk, Gandhidham, Gujarat, India- 3702O1 (Kutch).

4. It is the case of Petitioner/Operational Creditor that it received arr order from the Corporate Debtor Compaay for a cargo of 62,000-64,000 tonnes of salt ln butk to be shipped arid transported from Kaudla port, Iadia to ChlttagoDg Port, Bangladesh via a ship, "pacific pioneer" (hereinafter "the Vessel') as per the agreed terms arrd conditions incorporating GENCON 1994, which is a voyage charter party. As per the lnformatlon available on the website of BIMCO, it ls stated that: fe{!.lN* "GEIiICON ls a stand.ard. wgage chartcr party. It is a i8^e general purpose agreement tor the sertces of a ship ln '. :.-::-:-.' :/J c.P. (I.B.l I{o. 4szlg/Iilcl,T I lllutl2ols e,^xch(Ittge Jor Jrelght and. cort be used ln a uat-lety of trqdes. It ls accompanted bg its own blll of ladlng, COI,IGENBILL 2016. The latest edltion of thts contract is GD {COM994. Copgttght tn GENCON 7994 i-s ,Eld bg BIMCO."

5. Since there arose some dispute in making payrnent of the demurrage amount to the Petitioner/Operational Creditor, therefore, the matter referred to Arbitration as per "vas agreed terms of contract, i.e. GENCON 1994.

6. As per the Clause 19 of the above stated agreement, any dispute that may arise between the party was to be referred to arbitration, in London, as per the relevant provisions of Arbitration Act 1996 (U.K.). It is submiited that the Clause 28 of the said stipulates for London Arbitration with English law to apply.

7. For the sake of convenience, the relevant Para 19(a) of the above referred agreement is being reproduced herein below: '79. (d) Thts Clufter Partg shall be gotnnted bS drtd constructed ln accordance lzoith English lau and ang dlspute aristrtg out of thts Charter Pattg shall be reJerred to arbitratlon ln London ln accordance ultlt the Arbitration Acts, 7950 and 7979 or dng stat'utory moditicatlon or ?e-enact nent thereo:f lor the ttme belng ln Jorce. tlnless the pofties agiee upon d sole arbiffior, one diblbdtor shall be appolnted bg each part! aftd thc arbltra,tlirs so appointed. slull dltpoint d, /rJ-/ c.P. (I.B.) No. 457/9/NCLT/AHM/2018 third arbitrator, the declslon of three-men tribunal thus constltrtted or ang two of them, shall be final,...'

8. It is further submitted that, in pursuErnce of such arbitration clause, the Learned Arbitrators have entered into the terms of reference for arbitration. Mr. Brlan Williamson and Ms. Sarra Kay of London, who were appointed as Learned Arbitrators by both party. After their appointment, and entering into the Arbitration, both Learned Arbitrators did not feel necessar;r to appoint a third Arbitrator in the arbitration proceedings.

9. In the Arbitration proceedings before the Arbitrator, tJle Pelitioner and the Respondents were repiesented by their respective Counsel/ Solicitors. Both Parties submitted their respective documents for claim and counterclaim and written submissions before the Arbitrators. However, oral hearing was demalded by both the parties was not accepted as it was felt necessar5r by the Learned Arbitrators :

10. The Petitioner's case before the Learned Arbitrators was that it agreed to carr5i a cargo of harmless salt from the Kandla Port, Indla to the Chlttagong Por.t of Bangladesh on al order receipt from the Respondent Company, The Petitioner/ Operational Creditor duly performed it part of PaBe 6 of 16 c.P. (I.B.f No. 4sZ t g INCI., I AHMI2OIB contract by shipping and traasporti ng _ 62,0O0 64,000 Tonnes of ,Salt, in butk from Kandla port to Chittagong Port, Bangladesh.

It 1 1. was contended tl.at the ship, ?acilic pioaeer, was arrived at the port of Kandla on 14.09.2016 at l2.10Hrs. and alchored. A Notice of Readiness fNOR") was tendered at O9.3OHrs. on 1S.O9.2O16.

12. However, the petitioner claimant made such grievance that the amount of demurrage for shipping the said cargo was not paid by the Consignor/Corporate_Debtor, being disputed by the corporate Debtor. Hence, the petitioner claimed initiaily US $ 141,65O=ZZ plus interest arld further revised by reducing the amount in claim in its reply submission of claims before the Learned Arbitrator, which amount to US g 1Ag,2OSl-. II 13. The present petition submits that the Learned Arbitrators having perused the material available on record. have pleased to held and pass arr award by declaring that the Petitioner/ Operational_Creditor, herein M/s. pacific GuIf Shtpptng pte,.Ltd. lsingapore) is entifled to be paid aa amount of defuurrage at the Ioad port.and thus passed award ln favour of it on O2.O7.2Olg by awarding GBp -.-?sL"- c.P. lLB.l No. 457l9/IrcLT IAfi}/tl2o,a 16,93?=OO as recoverable cost of the owaer from the Respondent/Corporate Debtor. The Learned Arbitrator further pleased to impose cost of the award which anounts to GBP 335O=00.

14. Thus, tl ey awarded total Arbitral amount for GBp 16,937=OO which ls equlvalent to US g 131,561=62 at I the rate of US $7,75O=OO and if the said amount is converted in Indian Rupees, it comes to higher than RS.1,OO,OOO/- (Rupees One Lakh). Hence, this Arbitra_l amount entitles the Petitioner/ Operational Creditor to trigger the Corporate Insolvency Resolution proeess in respect of the Respondent/Corporate-Debtor in accordance with the Insolvency and Bankruptcy Code, 2016.

15. As per the record of the present matter, there is no reply or representation received from tire Corporate Debtor despite issualce of notice and paper publications effected. The present matter initially was listed for hearing on 25.09.20t8, 06.11.2018, 14.12.2018, 05.02.2019, 22.03.2019, 27.05.2019, 27.O6.20L9, 20.0A.2079, 17.09.2019, 03.10.2019 and on 23.1O.2Ot9. Finallv the order was reserved. orr 26.1L.2O19 rffi j R;S

C.p. (r.B.l No. 4s7l9/ncLT l,JlrMlZO,3

16. The Petitionerj'Operationa-1-Creditor, M/s. pacific Gulf Shipping (Singapore) Pte. Ltd, in compliance of this Bench,s order dated 17 .O9.2O19 duly furnished proof of paper publication of notice of hearing of the present I.B. petition which got published in the Indiaa Express (English) Ahmedabad Edition and in Kutch Mitra (Gujarati), Bhuj Edition.

17. The Petitioner, in support of the present I.B. petition has further frled a-n alfidavit of Mr. Rohit parmar, Authorised Signatory by verifying the facts of the present I.B. petition by stating /deposing as under: (q Thd the Corporate Debtor is indebted to the Operational Creditor for an au.tarded/ decreed-sum of IJSD j59,366.04 and. GBP 20,569.87, along uith furtlrcr interest calculated @ 5% p.a. compounded at three monthlg interuaLs from the d_ate of tltis Apptication til( pagment/ realization in accord ance uittl-the Arbitral Atuard doted 26 lt[arch 2Oi8 and Award of Assessed Costs dated 2 July 2018. (ii) That the Award dated 26 March 2018 u.tas passed. bg th.e Arbitral Tibunal compising of Mr. Bian Wiltiamson and Ms. Sarra Kag appointed under the LMAA. A copq of the Au.tard d.ated 26 March 2018 is annexed hereto and marked as Annexure B. The arbitral tribunal allowed th.e contentions of tle Operational Creditor and made tLLe following awards: a. Claim for demunage USD 131,333.75 b. Interest @ Sa/o p.a. compounded at thtee month)g interuals on USD 131,333.75 from 1 January 2O17 amounting to 1 August 2018 = USD 10,750.15. c. Cosfs of the autard dated 26 March 2018 = GBP 12,975 r.z;/ ri'e usD 1 7'282' 1 4l ?i: -::

c.P. (I.8.) o. 457l9/NcLTIA,d,]0IIzora fiq Twt the Arbitral Tribunat compising of Mr. Bian Williamson and Ms. Sana Kag passed the ',Award of Assessed. Costs, on 2 Julg 2018. A copg of the Atuard of Assessed Cost dated 2 Julg 2018 is annexed hereto and marked as Annexure C, The arbitral tribunal asessed the costs of the arbitration and made the follouing au.tards: a. Recouerable Cosrs GBP 16,937 [ie. USD 22,559.36] b. Interest @ 5% p-a, compounded at tlvee monthhg interuals on GBP 16,937 from 26 Marclt 2018 to 1 August 2018 = GBp 2 82. 87[i.e. USD s69.27] c. Costs of the au.tard dated 2 Jutg 2O1B - GBp 3,SSO [i.e. USD 4402.061 (tv) That the Award came to be passed und.er a uoyage charter partA, euidenced bg a Recap dated 9th September 2016 incorporating th,e GENCON 1994 form entered. into betuteen the parties, uherein the Operation Creditor cllartered. the motor uessel "Pacifi.c Honeer" to tle Corporate Debtor to corry a cargo of 62000-64000 tonnes of Salt in bulk from Kandla to Chittagong Annexed hereto and marked as Anrlexure D is a copg of *rc charter partg, euidenced by a Recap d.ated" 9 September 2O16 incorporating the GENCON 1994 form. (v) That tlp autarded/ decreed sums are an operational debt, since tleg are claims in respect of the proutsion of good.s or seruices, PU ffnt the Operational Creditor deliuered a demand. notice dated 9 Julg, 2018, demanding paAment of the amounts inuolued. in tlrc default to the Corporate Debtor at tte Corporate Debtor,s registered office at Neelkanth BBZ 560, Zanda chousk, Gandhidham, Guj arat, India 4 7 02 O 1. ffat ftrq the Corporate Debtor has not, within a period of 10 dags of tLte receipt of the demand notice, broughl to tlrc notice of the Operational Creditor the eiste.nce of a dispute, and record of the pendencg of tlrc suit or arbitration proceedings filed before the receipt of the demand nottce, in relation to such dispute, or the repagment of the unpaid operational debt, by sending an attested mpg of the record of electronic transfer of the unpaid :G;;-;.t:.Yi iffi) o _.-d

C.P. (I.B,l No. 45719lNcLTl AIINtl2OlA amount from the bank account of tle Corporate Debtor or bg sending an Attested copg of record tLnt tLE Operational Creditor has encashed a cheque issued bg the Corporate Debtor. ftnfi) Ttat the Operational Creditor luts not receiued paAment from the Corporate Debtor or notice of tlLe dispute under Section 8(2) of The Insoluencg & Bankruptcy Code, 2016 afier tle expiry of ten dags from tte date of deliuery of the notice dated 9 Julg 2018 demanding pagment. Therefore, tle Operational Creditor is entitled to make an Application before this Hon'ble 'IYibunal for initiating' a corporate insoluency resolution proceeding.

18. Thus, it is evident that the Corporate-Debtor did not enter .its appearing in the present matter nor disputed the award passed by the Learned Arbitrators as was referred to in Arbitration by both parties. There is no evidence available on record which shows that the Respondent/Corporate- Debtor has disputed the quaatum oith. .*or.rt of Arbitral Award, i.e. US $ 131,333=75, which has now become due and payable as an operational debt nor the award is said to have been challenged in British Competent Cor.rt of Law or in Indian Court as per the provision of the Arbitration Act, 1996 (U.K.) or under the provision of the Arbitration & Conciliation Act, 1996. Hence, Arbitral Award has reached in its finality. Therefore, in our view, the unpaid amount towards demurrage / amount of Arbitral Award cal be treated as Debs under Section 3(10) and 3(11) of the Insolvency and Bankruptcy Code, 2016.

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C.P. (I.B.) No. 457/9/NCLT I A,lM.lzotg

19. Therefore, ln our view, the unpaid amount towards the demurrage amount of arbitra_l wdg. Fa_lls within the definition of a debt under Section 3(11) of ttre I.B. Code. Further, Section 3(10) describe about debts which meaas a liability or obiigation in respect of a claim which is due from any personnel and includes financial debt and operational debt. F\rrther, the Section 3(1O) defines services among a1l creditors which meals any person, to whom a debt is owned and includes Financia_t Creditor, Operational Creditor, a secured creditor and unsecured creditor and a decree holder.

2O. Since, in tJ:e present case, an award has been passed in favour of the Petitioner. his status is as good as of a decree holder. Hence, he can come within the scope of the Operational Creditor and the Arbitral amount which is unpaid, ca-n be treated as a default of debt has occurred. For the sa-ke of convenience, the relevarrt provisions of Section 3(1C) and 3(11) are reproduced herein below: "Section-S: In this code, unless the contzxt otheruise requiresr- (1)..... xxxxxx Kcredltor" (7O) meozrs dng pe"son to uhom a debt 7s oued and includes a financiol credltor,'an operatlonal creditor, a seci.tred creditor, an unseatred. credltor and, 6)ryl$ a d.ecree holder; !i' '.ffi'l' g \i' ir

C.P. [,8.f iyo. 46719/NSLT/AH ttzor} odebt'mcans (77) a ltahllitg or obldlga/cron ln respect of a claim uhlch ts due from dng peraofl qnd lnchtdes a ffnanctal debt and. operational d,ebt; xxxtiJtx,

2 1. Further, the Section 5(2 l) deline the Operational Debt which reads as ulder: Sectioz 5 xxxxxx koperatio,., (27) debf mc.rrts a clalm in respect oJ the ptot ision of goods or serolces incfudtng ernlrlogrrtent or d. debt in respect ol tlr-repagnent of dues crrisf'rg under antg laut for the t t rte being ln force and. pagable tn the Central Gotf,r7.,l1rlflt, ang State Gouentmcnt or ang local oluthorltg;D 22. By following the above stated legal piovisions arrd perusal of the material available on record, it is evident that the Petitioner/operational-creditor has provided its senrices of cargo by traasporting and shipping t}le goods of Corporate Debtor, i.e. bulk salt from Kandla port (India) to Chittagong Port (Bangladesh). since, the corporate Debtor has fafled to pay the due amount towards demurrage and transporting charges, which lead to arr Arbitration proceedigns and thereby an Arbitral Award has been passed in favour of the Petitioner arrd against the Corporate Debtor. Hence, we are of the view that the claimed amount of demurrage which has been awarded is stiil unpaid. Hence, it has become due and payable arrd a default of Arbitral amount cal be c.P. (I.8.) No. 4szl9/NCLT I A,INLI 2O,8 treated as good as arl Operational Debt. Thus, the default of debts has been occurred and is well established. Hence, a Corporate Insolvency Resolution Process fCIRp,) can be triggered in respect of the Corporate Debtor Company. That apart, ttre present I.B. Petition is frled through its authorised signatory, Mr. Rohit Parmar of the petitioner Company. Hence, its filing is found to be in order and well I within the limit.

23. For the above stated reason, the present IB petition filed under Section 9 of.tl.e code is found complete to trigger the Corporate-I solvency-Resolution-process f.CIRp,l in respect of Corporate-Debtor-Company. ?he present LB. Petition deserve for admission under the I.B. Code.

24. Hence, t.lle present IB petition is hereby admitted. It is ordered that the CIRP in respect of the Corporate-Debtor- Compaly namely, M/s. S.R.K. Chemicals Ltd. shall commence from tJ e date of this order with following observation/ direction.

25. This Adjudicating Authority, in exercise of power conferred. to it under Section 13 and 14 of the I.B. Code, 2016 declares moratorium from the date of of "o.imencemerrt insolvency, by prohibiting of the following, namely: - a,11 c.P. (I.B.l ryo. 4szl9/ncLT t ldlt!/,l2ot}

I.(a) The institution o.,fsuifs or continuation of pendingsuirs or proceedings against the corporate debtor inctuding execution of ang judgement, d.ecree or order in ang court of laut, tibunal arbitration panel or other authoritg. (b) Transferring, encumbeing, atienating or disposing of bg the corporate debtor ang o/ lts assefs or ang legal right or beneficial interest therein. (c) Ang action to foreclose, recouer or enforce ang securitg interest created bg the corporate debtor in respect of its propertg including ang action und.er the Seanritisation and Reconsttuction of Financial Asse/s and Enforcement of Secuitg Interest Act, 2OO2 (54 of 2OO2); (d) Ihe recouery of ang propertg bg an outner or lessor uthere such property is occupied bg or in the possession of the corporate debtor. I. The supplg of essential good.s or seruices to the corporate debtor as mag be specifi.ed. shall not be terminated. or suspended or intemtpted duing the moratorium peiod. The prouisions of sub-section (1) shall not applg to such transactions as maA be notified bg the Central Gouemment in consultation u.tith ang financial sector regulator. The. order of moratoium shall haue effect from the date of such order till the compilation of the corporate insoluencg resolutio n proce s s.

26. Since, the petitioner/Corporate-Debtor d.id not suggest arry name of Insolvency professional, this Adjudicating Authorit5r hereby appoints Mr. sunit .ragdrshchaudra Shah, having Insolvenry professional Registration Nir. IBBI/IPA-OOI lIl--pOO4ZLl2Ot:,-tglLOA!4, Emait ID: sunltT8@gmail.coa, noblle no. 9g26562442, as aa I -.- Page rs of r;Y c.P. (LB.) No. 4sT lg lNcLT t AfrNrt2ota

Interim-Resolution-professional. The Interim-Resolution- Professional is further directed to make public announcement of moratorirrm in respect of Corporate_ Debtor-Company soon after receipt of an authenticated copy of this order and to act further as per the order/direction issued by this Adjudicating_Authority and to follow the provisions Section 13 and 14 ald relevant provisions of tJle Insolvency and Bankmptcy Code. ( 27. An alrthentic copy of this order to be communicated by the Petitioner as weli as by this Registry to the Corporate- Debtor-Compaly, as well as to the Interim_Resolution_ Professional and the Registrar of Compaaios at the earliest.

28. The present IB-Petition is disposed of accordingly.

Adjudlcattng Authority & Member (Judiciall be True Copy-i'rm.'.) ')-,Y-,:il

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