2021 (7) TMI 815

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....the Corporate Debtor- 'DC Industrial Plant Services Pvt. Ltd.' in 2006. The Appeal gives particulars regarding how the Respondent failed to carry out the contracts and the Appellant claims that the Appellant was constrained to terminate the contract on 22nd June, 2015 and to get balance work executed through third party namely- 'M/s. MELCO'. According to the Appellant, Corporate Debtor referred the disputes relating to Ash Water Re-circulation System package for BARH super thermal power project arising from the contracts to adjudication. 3. Application under Section 7 of the 'I&B Code' was admitted against the Corporate Debtor on 30th July, 2018 and the Appellant filed proof of claim as an "other creditor" under Form 'F' on 26th October, 2018 and the Resolution Professional published list of the Creditors on 29th October, 2018. Subsequently, Liquidation order was passed on 19th June, 2019 (Page 299). The Appellant filed claim under Form 'G' to the Liquidator. The Liquidator however, sent an e-mail rejecting the claim on 04.09.2019 and the Appellant moved Adjudicating Authority by filing CA/(IB)/1818/KB/2019 in the Company Petition. The Adjudicating Authority recorded that it was p....

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.... as per these General Conditions of Contract between the parties to the Adjudicator who passed award. Copy of the Award is at Page 246 and the concluding observations read as under:- "Observations:- The undersign has examined the claims and the counter claims of the parties in the present dispute and has concluded that the Claims of the M/s. DCIPS are not tenable and without any justifications hence the claims outlined in Annexure IV of the petition amounting to Rs. 8748.00 lakhs are summarily rejected. In view of the submissions made by NTPC that the contract termination is in line with the Clause no. 42.2.3 and 42.2 of the GCC of the aforesaid contract as M/s. DCIPS has not fulfilled its obligations under the contract, committed continuous breaches and ample opportunity was provided to M/s. DCIPS to remedy the defaults, however no remedial measures were taken by M/s. DCIPS neither any firm commitment provided towards completion of package. I fully agree with the contentions of NTPC and opine that the termination is in line with the contract provisions and encashment of Bank Guarantees justified. As regards the counter claims of NTPC the adjudicator feels that the new contract a....

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....erewith and marked with the letter 'B';(c) Rs. 4,67,49,011/- for cost of spares already procured from OEM for DCIPS supplied materials. Copies of purchase orders of spares along with a tabular summary sheet are annexed herewith and collectively marked with the letter 'C'; (d) Rs. 2,52,20,909/- for cost of spares to be procured from OEM for DCIPS supplied materials. Copies of purchase requisitions along with other relevant documents and summary sheet is annexed herewith and collectively marked with the letter 'D'; (e) Rs. 4,14,905/- for cost work of Hanger support and fluidising pad below ESP on risk and cost of Corporate Debtor. Copy of the service purchase order (inclusive of GST) is annexed herewith and marked with the letter 'E'; (f) Rs. 12,52,62,708/- towards overhead cost to be incurred on the abovementioned items a to e; (g) Rs. 25,83,05,308.00/- towards the claim of SPML against NTPC due to delays caused by the Corporate Debtor. A letter issued by SPML dated May 27, 2015 (which includes the memorandum of claims) along wuith the brief written arguments filed before the Ld. Arbitral Tribunal are annexed herewith and collectively marked with the letter 'F'; 3. The NTPC Limited ....

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....ld have been accepted as the claim of the Appellant. 11. As per Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, the Liquidator was required to process the claims submitted in Form 'G' by the Appellant as claim by "Other Stakeholder". Regulation 20 provides for processing of claims by other stakeholders and the Appellant was required to prove its claim inter alia on the basis of relevant documents which adequately establish the claim. Under Regulation 23, the Liquidator has power and duty to call for such other evidence or clarification as he deems fit from a claimant for substantiating the whole or part of its claim. Regulation 25 may be reproduced which reads as under:- "25. Determination of quantum of claim.- Where the amount claimed by a claimant is not precise due to any contingency or any other reason, the liquidator shall make the best estimate of the amount of the claim based on the information available with him." 12. In fact, Regulation 28 even makes provisions for contingencies where debt is payable at future time and Regulation 29 provides for Mutual Credits and set-off. The substances is that there are sufficient provisions which r....