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TMI Blog2018 (11) TMI 1662X X X X Extracts X X X X X X X X Extracts X X X X ..... s petition with false information alleging the principal amount as ₹9,19,40,000/- instead of ₹4,40,000/- without going into the merits, we are of the considered view that the Petition has been filed with ulterior motive to get insolvency petition admitted which comes under purview of Section 65 of the IBC. Petition is dismissed with costs of ₹10,00,000/- which is to be paid by the Operational Creditor within 30 days from today. - CP 21/I&BP/NCLT/MAH/2018 - - - Dated:- 30-11-2018 - Shri V.P. Singh, Member (Judicial) And Shri Ravikumar Duraisamy, Member (Technical) For the Petitioner: Mr. Rohan R. Sonawane, Advocate For the Respondent:Mr. Karl Tamboly, Advocate a/w Mr. Kunal Kanungo, Advocate and Mr. Malcolm Siganporia, Advocate. ORDER V. P. Singh, 1. Petitioner, TATA Chemicals Limited, has filed this Petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of CIRP against the Corporate Debtor, Raj Process Equipments and Systems Private Limited, having identification number as U29299PN2003PTC017672 with share Capital of ₹20,00,00,000. 2. It is stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The operational creditor is also claiming interest @ 18% per annum on ₹4,40,000/-, i.e. ₹34,066/- and interest amount from 17.7.2017 till the date of filing the petition @ 18% per annum on ₹9,15,00,000 i.e. on compensation amount. The total amount of debt is shown as ₹9,90,58,377/-. 5. In Part IV of the application, the petitioner has shown the details of the operational dues of ₹9,90,58,377, which is as below: Date Particulars (in ₹) 21.4.2017 (Advance Payment) 4,40,000 21.4.2017 (actual financial damages) 9,15,00,000 17.7.2017 till present day @ 18% per annum on ₹4,40,000/- 34,066 17.7.2017 till present day @ 18% per annum on ₹9,15,00,000 70,84,311 Total 9,90,58,377 6. Alongwith the Petition, Petitioner has attached the legal notice for termination of purchase order as Annexure G, which shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 which is marked as Exhibit R-1. The Corporate Debtor has further stated that it continuously conveyed its readiness and willingness to deliver the said evaporator to the applicant which can be inferred from the above mentioned emails and also from the various letters correspondence between the applicant and the Corporate Debtor dated 14.2.2017 and 17.2.2017, which is annexed with the reply as Exhibit R2. 9. The Corporate Debtor has further stated that the applicant was not really interested in lifting the machinery but only interested in making a claim against the Corporate Debtor and with that intention insisted on renewal of Bank Guarantee. However, since the delay was not attributable to the Corporate Debtor but to frequent changes and modifications by the employees of the applicant, the Corporate Debtor pressed for inspection and lifting the goods. However, the applicant did not take any steps for arranging inspection but was only interested in supply of Bank Guarantee. Despite of the Corporate Debtors continually conveyed readiness and willingness to deliver the said evaporator, the applicant sent a contract termination letter dated 21.4.2017, thereby autocratica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime being in force and payable to the Central Government, any State Government or any local authority. 13. It is further stated that Section 3(11) of the Code provides that Debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. Operational Debt as defined under Section 5(21) means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law. 14. Refund of advance money is not in connection with the goods/services including employment or a debt in respect of repayment of dues. Corporate Debtor has taken order from the petitioner for supply of goods. The contract/order has been terminated by the Petitioner. Therefore, refund of advance amount, which has been taken by the Corporate Debtor, is not on account of goods/services or employment. 15. Ld. Counsel for the Corporate Debtor has raised the argument that Operational Creditor s claim on compensation or damages on account of alleged breach of contract is not admitted by the Corporate Debtor, in fact, Corporate Debtor has raised a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation nor does the party complaining of the breach become entitled to a debt due from the other party. The only right which the party aggrieved by the breach has is the right to sue for damages, and this is not an actionable claim. 22. It is also important to point out that Petitioner had neither provided any goods nor any services to the Corporate Debtor. There is no amount givenby the Petitioner to the Respondent in nature of debt. On the other hand, the Corporate Debtor is a vendor, and the applicant has not made payment to it. Hence the petitioner is not an Operational Creditor as defined under the IBC. 23. Argument has been further advanced regarding the existence of dispute. It is clear from the bare perusal of the correspondence (Exhibit R1, mail of 7.2.2017) between the parties that there is clear dispute between the parties. The petitioner was not ready to deploy anybody for inspection of the material until and unless the Corporate Debtor provides the renewed Bank Guarantee. Further, the Corporate Debtor was taking a stand th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout any adjudication. It is also pertinent to mention that purchase order which was given to the Corporate Debtor provides that the goods were to be supplied by 30.9.2016 or earlier, in case of delay in delivery beyond 30.9.2016, the applicant shall levy liquidated damages at 0.5% per week of delay subject to maximum of 5% of the contract value. Since the total contract value as per the Purchase order was ₹44,00,000, therefore the maximum compensation/penalty ,in case of breach of contract by the corporate debtor,which could have been claimed, would have been 5% of the contract value, i.e. ₹2,20,000. The copy of the purchase order has been filed with this Petition as Annexure. 29. Since the Petitioner filed this petition with false information alleging the principal amount as ₹9,19,40,000/- instead of ₹4,40,000/- without going into the merits, we are of the considered view that the Petition has been filed with ulterior motive to get insolvency petition admitted which comes under purview of Section 65 of the IBC. 30. Petitioner s claims do not fall within the definition of Operational Debt. Petitioner has filed false affidavit to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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