AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 2197
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....hereinafter "Mashkour") for an amount of US $ 149,975,000/- for Design, Engineering, Supply, Installation, Testing, Commissioning of a sugar Plant at Mashkour Agricultural site, White Nile State, Sudan capable of crushing 8,750 tonnes of sugar cane per day on 24 hours basis to produce 45 ICUMSA sugar (hereinafter "said Project") and for remedying defects, if any, in the said Project. The said Project was proposed to be financed under the Government of India's Line of Credit (Gol-LoC) being operated through Export-Import Bank of India (Exim Bank). Further stated that through a competitive bidding, the Corporate Debtor was selected to be a Sub-Contractor Of the said Project. 2.2. Thereafter, a tri-partite agreement dated 18.12.2010 executed between (i) Mashkour, (ii) the Corporate Debtor and (iii) the Operational Creditor. The Corporate Debtor (KBEL) was placed as a Sub-Contractor. The Operational Creditor (OIAIL) in the said Agreement is referred as "the EPC Contractor". Thirdly, Mashkour Sugar Company Ltd. is referred as "the Employer". Salient feature of the said Contract Agreement was that the Employer and the EPC Contractor were willing to sub-contract the whole of the work as ....
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....ply dated 14.07.2017 to the Notice of Motion (L) No. 1314 of 2017 in Suit No. 382 of 2017, stated and admitted that the said Mashkour had appointed the Corporate Debtor as its EPC Contractor for the said Project under and EPC Contract dated 05.07.2017. The Petitioner vehemently argued that as a consequence of this fresh contract between Mashkour and the Corporate Debtor, the earlier tri-partite contract dated 18.04.2010 became invalid and stood automatically vitiated. Further, the Operational Creditor intensely argued that the Corporate Debtor cannot perform under the said tri-partite contract dated 18.04.2010 any more under the fresh contract, i.e. after 05.07.2017. 2.8. In view of the fresh contract dated 05.07.2017 between Mashkour and the Respondent Debtor, the Petitioner/Operational Creditor demanded that, in the light of the Corporate Debtor's admission in the said Reply, the Corporate Debtor is liable to refund the said Advance amount forthwith to the Operational Creditor. So, according to the Petitioner, since the fresh contract had appointed the Corporate Debtor instead of the Operational Creditor as its EPC Contractor, the amounts paid by the Operational Creditor to the ....
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....ed to be for specific performance wherein the Respondents are the party filed before the Hon'ble Bombay High Court wherein on those very evidences and claims which have been raised again in this Insolvency Petition. As per the Respondent, the refund sought to be recovered is associated with the supply of Sugar machinery to M/S. Mashkour Sugar Company Limited, Sudan, for which alleged advance was paid through the Applicant (Contractor) to the Respondent (Sub-contractor) as per one MOU executed between Sugar Company (Employer), Applicant (Contractor) and Respondent (Sub-Contractor). The Respondent had denied that any advance was repayable under the said Tri-partite agreement of 18.12.2010. Referring the clauses of the Tri-partite agreement it is explained that the Respondent had received USD 10.62 Million on 30.08.2011 which was equivalent to INR 47,12,10,000/-. It was received by the Respondent on behalf of M/s. Mashkour Sugar Company Limited, Sudan. One of the contention is that the Applicant had never paid any money to the Respondents in USD hence in effect there was no question of repaying the amount in USD. Otherwise also, the Applicant is trying to get back almost 1.5 times of ....
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....ery date, it was clear that the Respondent (KBEL) was responsible to the Sugar Company and the Applicant OIAIL was merely an intermediary in the entire transaction. The Applicant was not to bear any cost and he was not responsible under the agreement, except liaisoning with Exim Bank, Mashkour Company and the Respondent. The Respondent (KBEL) has executed Sugar Manufacturing Plants on turnkey basis and supplied specialized machinery to various Organisations and Departments of Government of India such as Department of Atomic Energy, Indian Space Research Organization (ISRO), Various Laboratories under DRDO (Defense Research & Development Organization) in Pune, Ahmednagar, Bangalore, and Hyderabad. Because of the past experience, the machinery was supplied by the Respondent. The Respondent has about 600 to 700 workers. It shall lead to irreparable loss if the Insolvency Petition is admitted. Under the Tri-partite agreement Mashkour Company was to release payment from First tranche of line of credit to the Applicant OIAIL. The Applicant in turn was to release payment of USD 10.62 million to the Respondent KBEL. The Respondent was to submit Advance Bank Guarantee and Performance Bank G....
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....hat there were various issues about working of the Operational Creditor (OIAIL). Finally, it has also been pleaded that no advance was received from the Applicant against supply of goods or tendering of services, hence not a case of Operational Debt. The Application deserves to be dismissed for the reasons (i) the amount was paid in August 2011 and the first demand for the same came from the Applicant in November 2017 after more than 6 years. Thus, the claim, if any, is barred by limitation; (ii) there exists no Debtor-Creditor relationship between the Applicant and the Respondent; (iii) any amount paid by the Applicant to the Respondent was on behalf of Mashkour and on the instructions of Mashkour, the same has been adjusted against future supplies to Mashkour; (iv) the Applicant ought to have referred the matter to Arbitration (v) there exists Dispute about the matter covered by the application (vi) only the courts in Sudan have jurisdiction and (vii) the Bank certificate submitted by the Applicant is incorrect. 6.1. To demonstrate that the Suit filed by the Operational Creditor has identical facts, the Learned Counsel of KBEL has referred Suit (L) No. 382 of 2017 wherein vide N....
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....ich any fine of credit is necessary. 4. In these facts, the ad-interim relief claimed by the Plaintiffs is refused. 5. Replies to the Notice of Motion to be med within four weeks. Rejoinder if any, within two weeks thereafter. Notice of Motion to come up for hearing after six weeks. 7. FINDINGS :- Having considered the totality of the facts and circumstances mentioned above, the first and the foremost observation of this Bench is that on one hand the Petitioner is contesting a "Specific Performance Civil Suit" and on the other hand pressing for commencement of "Insolvency Proceedings" in respect of an amount which is the subject matter in both the proceedings, which cannot run side by side. This observation is also buttressed by the portion of the decision of the Hon'ble High Court reproduced supra that on identical facts as raised in this Insolvency Petition, the Operational Creditor is already agitating before the Hon'ble High Court. 7.1. On elaborate analysis of the background of the case in the light of the Agreements/Tri-partite Agreements executed it emerges that there was an Agreement for Engineering, Procurement and Construction (EPC) to be executed under the instruc....