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TMI Blog2019 (12) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... yadarshini Hydro Power (P.) Ltd. (in short, Respondent/Corporate Debtor) under section 9 of the Insolvency and Bankruptcy Code, 2016 (in short IB Code) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short, IB Rules, 2016). 2. Before proceeding with this matter, it would be appropriate to make a note of background facts for the purpose of determination of this petition which are as under: a. That a Contract Agreement dated 30-3-2012 was executed between the Petitioners/Operational Creditor and Corporate Debtor for design, manufacture, testing at manufacturing plant before dispatch, packing, forwarding and supply on Ex-Work basis of Electro-Mechanical Plant and Equipment for 2x3 MW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its liability to make the payments towards the pending outstanding as well as entry tax payments. No objection was ever raised to the invoices/bills and the additional expenditure incurred by the Operational Creditor. The Corporate Debtor further promised to arrange part payment starting September, 2016 and requested the Operational Creditor to bear with them. The Operational Creditor requested the Corporate Debtor to release the overdue payments including additional expenses and the Corporate Debtor was informed that payment outstanding was Rs. 3.20 Crores and additional expenses till December, 2015 was Rs. 2.67 Crores. g. That the Corporate Debtor vide its letter dated 29-12-2016 admitted its liability to pay the outstanding pending pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with interest @12% p.a. from April, 2018 till realisation. 3. Counsel for the Respondent filed counter and written submissions inter alia stating as under: That the term "default" under section 3(12) of the I&B Code, 2016 is defined as non-payment of debt when either whole or any part of the debit has not only become due and payable but the same has not repaid by the debtor or corporate debtor as the case may be. It is significant to note that, in the present case at hand, the debt has neither become due nor payable apart from there being a mere allegation made by the Petitioner that the Respondent has to pay an amount to the tune of Rs. 9,32,93,528.82. There has also not been any mention as to the manner or procedure adopted for arrivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture, testing at manufacturing plant before dispatch, packing, forwarding and supply on Ex-Work basis of Electro-Mechanical Plant and Equipment for 2x3 MW+10% COL for Manuni II Hydro Electric Project for which an amount of Rs. 9,32,93,528.82/- was due and liable from the Corporate Debtor. Corporate Debtor in its rebuttal has raised a point with regard to the quantum of claim and further stated that the debt has not become due and liable to be paid. 6. From perusal of the documents placed on record, it is observed that Respondent had made a part payment of an amount of Rs. 4,25,00,000/- and further it is observed that the Respondent in its reply to the demand notice sent u/s. 8 of the Code has stated as under: ".... Suitable land wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sub:- Andritz - pending paymets of Manuni HEP Reg- Ref: - Contract No. MHEP-11-12/01 dated 30-3-2012 Further to the discussions we had with you on pending payments for the Equipments supplies to Manuni Hydro Project vide contract cited this is to reiterate that all the relevant pending payments will he cleared as soon as we get the clearance from our lender/private venture capitalists. This clearance is expected by end of Jan - 2017." 10. The aforesaid letter clearly establishes admission of debt on part of the Corporate Debtor. That there is a default on the part of the Corporate Debtor is also clear from a perusal of the correspondence between the Operational Creditor and Corporate Debtor including the MoU dated 24-10-2013 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing, namely: "(a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment; decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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