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TMI Blog2020 (4) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... he Parties. The Petitioner is permitted to submit their representation about its claim along with supported documents to the Respondent within the period of 4 (four) weeks from the date of receipt of copy of this order - Petition disposed off. - CP (IB) NO. 253/BB/2019 - - - Dated:- 29-1-2020 - Rajeswara Rao Vittanala, Judicial Member And Ashutosh Chandra, Technical Member For the Petitioner : Vivek S. For the Respondent : Mrs. S.B. Shobha ORDER RAJESWARA RAO VITTANALA, JUDICIAL MEMBER 1. C.P.(IB)No.253/BB/2019 is filed by M/s. SSP Private Limited(Petitioner/Operational Creditor) U/s. 9 of IBC, 2016, R/w Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by inter-alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Athani Sugars Limited (Respondent/Corporate Debtor) on the ground that it has committed default for an amount of ₹ 66,11,862/- (Rupees Sixty Six Lakh Eleven Thousand Eight Hundred and Sixty Two only) along with interest at the rate 18% p.a. 2. Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 24-12-2014 to 19-1-2015. Accordingly, a joint inspection report was signed by the parties on 19-1-2015. It is evident from the said joint inspection report that the plant was handed over to the Respondent after successful installation, commissioning and trail. This fact cannot be denied or disputed by the Respondent. As the Respondent failed to pay the outstanding amount, the Petitioner issued a demand notice on 20-2-2019 by calling upon the Respondent to pay a sum of ₹ 66,11,852/- (Rupees Sixty Six Lakh Eleven Thousand Eight Hundred and Sixty Two only) with interest at the rate of 18% p.a from the due date. (5) In response to the said Demand Notice, the Respondent/Corporate Debtor issued reply dated 8-3-2019 by inter alia stating that the Petitioner has raised false and frivolous issues and trying to create an imaginary dispute, which is not permissible under law. The Respondent has also mentioned about the issue of performance Bank Guarantee of 10%, The performance bank guarantee to be furnished only upon demand of payment within the warrantee period of one year after installation and commissioning. In the light of joint inspection report dated 19-1-2015, the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 137 of the Limitation Act and the Petitioner has averred in the Petition that the default in question occurred on 19-1-2015, and the instant petition was filed on 10-5-2019 which is beyond prescribed of limitation. (4) It is stated that the Parties have exchanged several e-mails from 21-8-2015 to 31-10-2015.However, the Petitioner did not respond to e-mail, and thus the final reminder by way of email dated 21-10-2015 was sent to the Petitioner, but the Petitioner failed to commission the Plant successfully and submit Performance Guarantee of 10% of the Purchase Order Value as per the Purchase Order dated 07-12-2013 as well as the agreement dated 10-12-2013 wherein it was agreed that 10% of the P.O value would be released after successful commission and submission of performance Guarantee valid for 12 months. (5) It is alleged that due to the failure by the Petitioner to successfully commission the plant, as agreed between them, the Respondent was constrained to purchase One (1) set for manufacture, supply, erection and commissioning of pre-treatment system for EXI, BMSW Evaporation for a sum of ₹ 17,80,000/- to successfully run the plant. The Petitioner failed to perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of agreement ; 15 % against submission of drawing and proof for major bought out items; 55 % against submission of proforma Invoice before dispatch and after inspection; and 10 % after successful commissioning and against submission of PBG valid for 12 months, and Guarantee for 12 months from the date of successful commissioning . The statement of Account filed by the Petitioner in Respondent shows , there are 12 bills in total and all the bills, except one bill dated 31.08.14, relates to March 2014 for the total amount of ₹ 73,094,462/out of which ₹ 66,482,600 was received in part. It is not in dispute that the Respondent has paid 90 % of claim and the remaining 10 % amount to be paid, which was stated to have forfeited for failure to give performance trial as per the operating parameters mentioned in the Agreement in question and also failed to furnish Performance Bank Guarantee (PBG) of 10 % PO value. As stated supra, the Respondent, vide its letter dated 5-11-2014 addressed to the Petitioner, has inter-alia requested it to depute their team to complete the commissioning of Evaporator plant immediately. 8. Though the Petitioner denied that allegation of non-commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on regular and seasonal on its roll. Therefore, the Company cannot be put under CIRP, when the Petitioner failed to make out case in favour of such prayer. Since the Respondent, for the first time stated to have raised plea of forfeiture of remaining balance amount in its reply dated 08th March, 2019, it would be just and proper to direct the Respondent to reconsider the claim of Petitioner, dispassionately, in terms of Purchase order and Agreement in question, in order to avoid further litigation, without prejudice to the rights of both the Parties. 10. In the result, C.P.(IB)No.253/BB/2019 is hereby disposed of with the following directions: (1) The Petitioner is permitted to submit their representation about its claim along with supported documents to the Respondent within the period of 4 (four) weeks from the date of receipt of copy of this order. (2) On the receipt of above representation, the Respondent is directed to examine the claim in terms Purchase order and Agreements in question, and to resolve the issue by passing appropriate order and communicate the same to the Petitioner, within a period of 4 (four) weeks thereafter. (3) The Petitioner is at liberty to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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