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TMI Blog2020 (4) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal dismissed. - Company Appeal (AT) (Insolvency) No. 288 of 2019. - - - Dated:- 18-11-2019 - Sudhansu Jyoti Mukhopadhaya J. (Chairperson) , A. I. S. Cheema J. (Judicial Member) And Kanthi Narahari Technical Member For the Appellant : Alok Dhir , Ms. Varsha Banerjee and Ms. Juhi Bhambhani For the Respondent : Abhay Kolte JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA J. (CHAIRPERSON). - 1. The appellant- M/s. Jyoti Ltd. (operational creditor) filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016 (for short, the I and B Code ) for initiation of corporate insolvency resolution process against M/s. Prasad and Co. (Project Works) Ltd. (the corporate debtor) alleging the default on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 15. The contention of learned counsel for the operational creditor that it is not responsible for any delay. Counsel contended, the operational creditor is ready to erect, commission and trial run the equipment as per the terms of payment but site is not handed over to the operational creditor by corporate debtor. If delay is occurred on account of the corporate debtor then operational creditor is entitled at least 20 per cent. of the retention money in terms of payment of the purchase order. The question whether delay occurred on account of the corporate debtor. Admittedly, the corporate debtor was given contract for completing the project for Majalgaon Lift Irrigation Sys tem on turnkey basis and equipment was transported to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order by the authorities of the Government of Maharashtra. Therefore, the corporate debtor cannot be found fault for the delay. 18. The operational creditor becomes entitled to retention money of 25 per cent. or 20 per cent. as the case may be only if it completes the terms of purchase order, especially erection, commissioning and trial run. This part of the contract was not completed. The amount becomes due only if operational creditor completes the remaining part of the purchase order. Till then, the amount does not become due. When the amount does not become due, then there is no question of default. When there is no debt within the meaning of section 3(12) of the IBC, then there is no question of default. Thus, operational credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the total consideration for the work order was agreed to the tune of ₹ 9,65,39,184.50. 5. Thereafter, an amendment to the purchase order as well as the work order was done by the appellant and the joint venture on February 26, 2014 and March 10, 2014 respectively. In terms of the said amendments, the purchase order and work orders were issued on behalf of the corporate debtor independently and the total consideration of the purchase order was agreed to the tune of ₹ 9,65,39,184.50 and total consideration for the work order was agreed to the tune of ₹ 34,50,815.50. In terms of the said purchase order dated February 26, 2014 the payments were to be made in different instalments, as per the details given in the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices amount of ₹ 8,93,47,704. The amount equal to 75 per cent. of the said amount comes to ₹ 6,70,10,780 but the respondent has actually paid more than the same, i. e., ₹ 6,67,58,301 to the appellant as per details given below : 8. In the aforesaid background plea has been taken that there is no unpaid invoice, in the absence of performance of the appellant, the appellant cannot claim payment. 9. Having heard learned counsel for the parties and from perusal of the records, we find that the application under section 9 was filed by the appellant only with a view to realise the amount and not for the purpose of corporate insolvency resolution process . 10. Apart from the aforesaid facts that we find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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