TaxTMI 
TaxTMI 
2018 (10) TMI 195
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....s Vaspite Site, Sangli District, Maharastra. (i) Purchase Order # NSL/PD/IVSP/2014/001 Dt: 26.08.2014 ("Supply Agreement") between the Corporate Debtor and the Operational Creditor, whereby the Operational Creditor was required to supply materials inter alia nacelle, hub, rotor blades, tubular tower and transformer for commissioning of the Project. (ii) Work Order # NSL/PD/IVSP/2014/002 dated 26.08.2014 ("E&C Agreement") between the Corporate Debtor and subsidiary of Operational Creditor i.e., Inox Wind Infrastructure Services Limited ("IWISL". A 100% subsidiary company of the Operational Creditor), whereby IWISL was required to inter alia Erect and Commission the Project. (iii) Work Order # NSL/PD/IVSP/2014/004 dated 26.08.2014 ("Development Agreement") between the Corporate Debtor and IWISL whereby IWISL was required to inter alia coordinate/facilitate for procurement/lease of land for the Project. (iv) Work Order # NSL/PD/IVSP/2014/003 dated 26.08.2014 ("Shared Service Agreement") between the Corporate Debtor and IWISL, whereby IWISL was required to inter alia provide power evacuation and shared infrastructure for the Project. (v) Wra....
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....ct of the Corporate Debtor. Thereafter, the representative of the Corporate Debtor visited the office of the Petitioner and agreed to settle the outstanding amount and entered into Memorandum of Understanding (MoM) dated 24.04.2017. 5. As per the said MoM, Corporate Debtor agreed to make payment of Rs. 7.34 Crore. Out of the said amount of Rs. 7.34 Crore Rs. 2.6 Crore was to be paid by the Corporate Debtor to the Petitioner for reinstatement of operation and maintenance services by the Petitioner to the Project. 6. The Corporate Debtor was supposed to submit two Post Dated Cheques to the Petitioner as security measure for balance due payment of Rs. 4,74,00,000.00/-. But Corporate Debtor failed to submit post-dated cheques of Rs. 4.74 Crores as security instrument for balance due to the Operational Creditor. Corporate Debtor also defaulted in fulfilling its obligations and did not make the due payment of Rs. 4.74 Crores to the Petitioner. Petitioner issued a demand notice U/s 8 of the Insolvency & Bankruptcy Code 2016 to the Corporate Debtor on 24.08.2017 demanding payment of Rs. 4.74 Crores. Corporate Debtor received the Demand Notice at its registered office on 28.08.2017, b....
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....TG's is much lower than the expected levels. The expected Plant Load Factor of 22.5% and even after 2 ½ years of operations is at 5.9%., during the Financial Year, 2017 and a marginally improved PLF of about 13%, during Financial Year 2018. Losses of about Rs. 9,45,00,00 Million in Financial Year, 2017 and Rs. 5,41,00,000. (v) Improper handling of Sub-contractors/Vendors by IWISL resulting in Right of Way issues and unable to attend regular operations and maintenance of WTG's which inturn caused huge loss of generation and revenue to the Corporate Debtor. (vi) Petitioner has consistently giving preference to other customers over the Corporate Debtor. Petitioner is not restoring the WTG's as per the terms of the contract and inordinate delays in restoring the WTG's by IWISL. (vii) Petitioner is not calculating the machine availabilities as per the formula agreed upon between IWISL and the Corporate Debtor and as a result the machine availabilities is shown as higher than actual machine availabilities and thereby IWISL is escaping penalties. (viii) IWISL is considering the non-fore majeure events under Force Majeure Events an....
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....EDCL for the remaining 2 MW. (d) Obtaining Wind Zone Classification from MEDA for the remaining 2 MW capacity. (e) Transfer of balance lands for each of the 5 WTGs to meet the agreed total extent of 3 to 3.5 Acres / WTG. 11. It is stated by the Respondent that Petitioner miserably failed to fulfil the conditions imposed upon it and therefore Respondent could not make payment of Rs. 4.74,00,000/- Respondent also stated that as the Demand Notice was misplaced in the Offices of the Respondent, Respondent could not give reply to the Demand Notice. 12. It is stated in the Counter that in view of the failure on the part of the Petitioner, no obligation is incurred by the Respondent to make the payment of Rs. 4.74 lakhs as alleged by the Petitioner. Respondent was constrained in providing the PDCs to the Petitioner as the requisite time lines for completion of the above mentioned conditions were not provided by the petitioner. 13. Respondent sent e-mail dated 02.10.2017 wherein requested Petitioner to provide milestones for fulfilment of the conditions against which PDCs can be issued. It is also stated that Petitioner has filed application with a mala fide inte....
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....ction 9 of the Act will have to determine: (i) Whether there is an "operational debt" as defined exceeding Rs. 1 lakh? (See Section 4 of the Act). (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debit is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitrational proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute?' If any of the aforesaid conditions is lacking, the application would have to be rejected. 19. Therefore, the Adjudicating Authority when examining the Application under Section 9 of the code will have to determine whether there is operational debt due and payable. 20. Operational Debt is defined in Section:5 (21) "Operational debt" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. 21. In the case on hand the claim made by the Petitioner is in respect of the services rendered by him in connection with Corporate Debtors p....
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.... agreed to make payment of a total amount of Rs. 7.34 Crore. It was further agreed that out of the said sum of Rs. 7.34 crore, Rs. 2.6 Crore was to be paid by the corporate debtor to the Operational Creditor for reinstatement of operation and maintenance services by the Operational Creditor to the Project. Further, Corporate Debtor was also supposed to submit 2 Post Dated Cheques ("PDC") to Operational Creditor as a security measure of balance due payment totalling to the tune of Rs. 4,74,00,000.00." 29. Therefore, even according to the Petitioner PDC-1 & PDC-2 has to be submitted by the Corporate Debtor to the Operational Creditor as Security measure of balance due payment totalling to a tune of Rs. 4.74 crores. 30. In the case on hand Respondent did not submit even the PDCs. Even before the submission of PDCs there was correspondence between the petitioner and respondent in the form of e-mail which is referred to in page Nos. 39 and 40 of the Counter. There appears to be disputes between the Petitioner and Respondent for non-submission of PDCs as per MoM dated 24.04.2017. Above all whether non-submission of PDCs which are treated as securities creates any liability or oblig....