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TMI Blog2017 (7) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... s fee and arbitration expenses between the parties. Disputes leading to arbitration shall not entitle any Party to suspend or retain any supplies and services. This is no reason to accept the contention that the respondent has not raised the dispute, as is evident from the contents of the reply to the notice. There being a notice of dispute raised by the petitioner and also on account of the defect, as discussed above, the instant petition is rejected - CP (IB) NO. 21/CHD./HRY/2017 - - - Dated:- 25-5-2017 - MR. R. P. NAGRATH For The Applicant : Kanwalvir Singh Kang, Adv. ORDER 1. This petition has been filed by the Operational Creditor to set in motion the Corporate Insolvency Resolution Process as contemplated under Section 9 of the Insolvency end Bankruptcy Code, 2016 (for short to be referred hereinafter as the 'Code') in relation to Arcotech Limited (for brevity Respondent/Corporate Debtor'). The petitioner-operational creditor is a company incorporated under the laws of Germany and engaged in the supply of one Achenbach 2-high non-reversing second-hand hot rolling mill, 920x2150 MM roll barrel length, dismantled, repaired and packed in Pieterm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,266.51 and the invoices dated 23.06.2016 for a sum of Euro 5,600,000.00. 4. The total amount of debt to be default is said to be Euro 4,472,638,99 (equivalent to ₹ 31,41,13,436.26 calculated at the rate of ₹ 70.23 per Euro) up to 02.03.2017 along with interest at the rate of 12% per annum. Against the column of date, on which the default occurred, it is stated that the payments were to be made within 360 days after signing of the sale and purchase agreement, which is dated 23.12.2014. 5. It is further the case set up by petitioner-operational creditor that a statutory notice dated 16.12.2016 was sent to the respondent-corporate debtor under Sections 433 and 434 of the Companies Act, 1956 stating the amount of default and giving the particulars of the invoice numbers and this notice is said to have been delivered upon the respondent on 22.12,2016 as per the track report of the postal department, which is part of Annexure 6 (Colly). 6. Thereafter the petitioner-operational creditor submitted that before filing of this petition, the operational creditor also sent a notice dated 07.02.2017 Annexure-7 in terms of Section 8 of the 'Code' making a demand of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport was also filed showing that the item was delivered to the corporate debtor on 05.05.2017. However, there is no representation from the corporate debtor despite the case having been fixed for various dates. 9. On 12.05.2017 it was noticed that the column at serial No.7 of part V of the application in Form 5 contains a statement that it is not applicable, whereas it is the requirement of the provisions to file the statement of Bank Account, where the deposits are made or the credits received normally by the operational creditor in respect of the debt of the corporate debtor. It was observed that the information supplied in the application was incomplete. It was further observed that the petitioner-operational creditor has not even stated as to when the last payment was made by the respondent-corporate debtor pursuant to the purchase order. The learned counsel for the petitioner- operational creditor accepted the notice of these defects and sought time to fife the documents along with affidavit as well as packing list and bill of lading as mentioned in the agreement and the matter was adjourned to 17.05.2017. 10. On 17.05.2017, it was observed that as per sub-section (5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority shall, within fourteen days of the receipt of the application under sub-section (2) by order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against the resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime and commencing the business. It was emphasised that on that account, the respondent was not obliged to accept delivery, making the payment of the equipment and rather, claimed the refund of the amount already paid. 20. The petitioner-operational creditor has relied upon two purchase orders dated 13.05.2014 in respect of the consignment, which are at Annexure A-3 (Colly). In first such purchase order dated 13.05.2014, the condition was that the delivery of the mill, description of which is given in the purchase order, shall be made within 20 months. In the second purchase order, the period of delivery is specified as 15 months. So, the period of the delivery according to the purchase orders relied upon by the petitioner would have expired in November and April, 2015 respectively. It is, however, the petitioner's own case that two of the consignments were sent vide invoices dated 10.11.2015 for Euro 272,266.51 and the other dated 23.6.2016 for Euro 5,600,000,00. 21. However, the safe and purchase agreement dated 23.12.2014 also contains clause No.4 relating to delivery period of whole of the consignment covered under both the purchase orders. This clause says that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the BUYER is interested in purchasing the second-hand hot rolling mill H2 ? 920x2150 mm Roll Barrel Length - hereinafter referred to as the Mill - from the SELLER which, however, firstly has to be brought by ACHENBACH from Hulamin Corporate - hereinafter referred to as HULAMIN -. Currently the Mill is located on the plant ground of HULAMIN at Moses, Mabhida Road, in Pietermaritzburg, 3200, South Africa, where it has to be dismantled and packed for the oversea transport to Mum bar/India, ACHENBACH is determined to buy initially the Mill from HULAMIN in South Africa to repair the mill to the extent described in the technical specification, (Appendix 1) and sell this equipment dismantled and packed to the ARCOTECH in India, 2. Price and Delivery Term. The total price of this agreement is a firm and fixed price based on the specified equipment (article 1) as it is, where is, dismantled, repaired, packed Pietermaritzburg/South Africa and the agreed time schedule of this agreement. .. 3. Terms of Payment. EURO 200.000.-(two hundred thousand EURO only) of the total price of the present AGREEMENT as down payment already paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid requirement, the Bank Certificate Annexure A-10 from pages 5 to 10 of the application dated 19.05.2017 was filed. A-10 is the certificate dated 10.05.2017 purportedly issued by the Landesbank Baden-Wurttemberg. It is stated that there is requirement to check the account of the operational creditor. Account number is mentioned in the said statement. This is with regard to the requirement as to whether there has been any payments received from February 2. 2016 from Arcotech Ltd. India. The information supplied in this certificate is that the sole amount received in the account of the operational creditor on 02.02.2016 from the respondent was Euro 927344,01 and no further payments or similar details have been received up to 09.05.2017. The other is the certificate dated 07.05.2017 issued by Sparkasse Siegen, the financial institution. It is certified that the amount received into the account of the petitioner from respondent was on 15.05.2014 to the tune of Euro 199.964,00. It is further stated that the said institution can check further payments in individual cases only with the help from concrete date, transfer day, transferred amount, payment order, operator bank and so on. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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