TaxTMI 
TaxTMI 
2020 (6) TMI 732
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...., 2019. 2. Brief facts of the case, as mentioned in the Application, are as follows: (1) M/S. Sodexo Food Solutions India Private Limited was incorporated under the Companies Act, 1956 with CIN No. U99999MH1994PTC082543 having registered office situated at 1st Floor, Gemstar Commercial Complex, Ramchandra Lane Extension, KanchpadaMalad (West) Mumbai-400 064. (2) M/S. Chemizol Additives Private limited (hereinafter referred to as 'Respondent/ Corporate Debtor') was incorporated on 13.09.2007, under the Companies Act, 1956 with CIN: U24240KA2007PTC043855 having its registered office at Plot No. 19 E & F, Bidadi Industrial Area, 2nd Phase, Sector 1 Talakuppa Village, BidadiHobli, Ramanagar District, Bangalore 562109. The Nominal/ Authorised Share Capital of the Company is Rs. 15,00,00,000/- (Rupees Fifteen Crores Only) divided into 1, 50,00,000/- equity shares of Rs. 10/- each and the issued subscribed and paid up capital is Rs. 12,37,31,570/- (Rupees Twelve Crores Thirty Seven Lakhs Thirty One Thousand Five Hundred and Seventy only) divided into 1,23,73, 157 equity shares of Rs. 10/- each. (3) It is stated that the Operational Creditor entered in....
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....yment of Rs. 26,65,600/- remained outstanding for the services provided by the Operational Creditor from March to June, 2018 (four months). The Corporate Debtor released an amount of Rs. 6,66,191/- towards invoice dated 09.04.2018 bearing No.SIKI1819000003, on 9th August, 2018. The Corporate Debtor confirming the same, sent an email to the Operational Creditor on 10th August, 2018 wherein the Corporate Debtor assured the Operational Creditor of settling maximum outstanding amount by 27th August, 2018. The Corporate Debtor , subsequently, replied by its email dated 28.08.2018, stating that they were awaiting funds from their parent Company, and further requested to clear the outstanding payment at the earliest. (6) The Operational Creditor, vide its letter dated 12th September, 2018 requested the Corporate Debtor to make payment of the outstanding dues of Rs. 25,93,350/- failing which the Operational Creditor would levy interest if the amount is not paid within 7 days. Despite duly receiving the reminder letters, the Corporate Debtor not only failed to reply to the said letters but also failed to pay the outstanding amount. Therefore, the Operational Creditor/ Petitioner th....
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.... the subject of delayed payments from your organisation. Further, we have made a note of the payment schedule provided by you, however unfortunately as disazssed yesterday, unless you make payments before month end of July. We do not have cash flow to run another month of service. We will have no other option to demobilise the project on 31st July 2018, hence kindly make arrangement to release our dues before 31st July. Kindly treat this mail as an official communication from our end on the subject. Thanking for you understanding and anticipating that your management will quickly take a decision to release the funds as requested, Regards. Vice President, Segment director (Industries)" Email dated 26.08.2018 sent by the Respondent states as follows: "On 26.07.2018, at 3.07 PM, MJ Adadia ([email protected] wrote: Dear Mr. Debaprateem Paul, This has reference to the telephonic discussions we had yesterday evening on the subject. We sincerely regret the non release of payment to you for the last 4 months. We very well understand the hardship being faced by you due to delay in payment from our side. Ba....
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.... 6. Though the Adjudicating Authority ordered notice to the Respondent, they have not filed any statement of objections to assist it. Therefore, we are deciding the admission of case, basing on the evidence placed on record in the Company petition, and the settled principles of law. 7. It is relevant to refer essential terms and conditions of the Agreement dated 14.12.2015, "Clause 10" deals with respect to termination of the Agreement, which reads as under: 10. Terms and Termination: 10.1 Terms : This agreement shall take effect and become binding upon the parties on the Effective Date of this agreement and shall remain in full force for a period of one (1) year or until the earlier termination or notice by either party to other party pursuant to Clause 10.2.3, that it is terminating this Agreement. 10.2 Termination: 10.2.1 Notwithstanding anything contained in this Agreement, and without prejudice to its other rights in law or equity and without any liability and judicial intervention, this Agreement may be terminated by the party not in default (the Non-Defaulting party) by giving a thirty (30) days' written notice to the party in def....
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.... The arbitration proceedings shall be held in accordance with the Arbitration and Conciliation Act, 1996, or any subsequent enactment or amendment thereto (the Arbitration Act). The venue of arbitration proceedings shall be at Bengaluru in the premises designated/chosen/ suggested by the CAPL. The language of the arbitration and the award shall be English. Clause - 16 deals with "Force Majeure" which reads as under: FORCE MAJEURE: Notwithstanding anything to the contrary in this Agreement, neither party shall be liable by reason of failure or delay in the performance of its duties and obligations under this Agreement if such failure or delay is caused by acts of God, war, riot, fire civil commotion, strikes, lock-outs, embargoes, any orders of governmental, quasi-governmental, or local authorities or any other similar cause beyond its control and without its fault or negligence. 8. As asserted by the Learned Counsel, the outstanding amount in question is primafacia found to be due from the Respondent. However, it is relevant to point out that the original Agreement dated 14.12.2015 was effective for a period of one year from 04.01.2016. However, the mai....
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....is binding on both the parties. Since the Petitioner has relied upon the very terms and conditions of the Agreement in support of its claim, it cannot selectively choose to insist payment in terms of the agreement, without making/ invoking provisions of alternative remedy. 10. It is a settled position of law that the provisions of the Code cannot be invoked to settle the dispute(s) or to recover the alleged outstanding amount. Admittedly the Petitioner has not invoked other remedies available except the provisions of the code by issuing demand notice. The mere acceptance of the debt in question by the Respondent would not automatically entitle the Petitioner to invoke the provisions of the Code, unless the debt and default is undisputed and proved it to the satisfaction of the Adjudicating Authority. As per the copy of Annual Returns for the Financial year 2017-18, filed by the Petitioner in respect of the Respondent Company, its turnover and net worth are Rs. 103,322,162 and Rs. 1,325,365,853/ respectively. Therefore, the Respondent Company prima facie appears to be solvent Company so as to resolve the issue of outstanding amount in question. The NCLT is conferred power, even t....