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TMI Blog2020 (6) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... much relevance to the issue in question. It is true that the Petitioner has also filed NeSL certificate issued in accordance with provisions of Section 65B (4) of Indian Evidence Act, 1872. However, before initiation of CIRP in respect of Application/ Petition filed U/ s 9 of Code, the Adjudicating Authority has to be satisfied that debt in question should be un-disputed. In the instant case, the Respondent has not responded to the notice issued by the Adjudicating Authority, except mere statement that they are going to settle the issue. Therefore, the Adjudicating Authority is handicapped by the non-response of the Corporate Debtor and it cannot initiate exparte CIRP proceedings like in Civil Suits. It is a settled position of law that the provisions of the Code cannot be invoked to settle the dispute(s) or to recover the alleged outstanding amount. Admittedly the Petitioner has not invoked other remedies available except the provisions of the code by issuing demand notice. The mere acceptance of the debt in question by the Respondent would not automatically entitle the Petitioner to invoke the provisions of the Code, unless the debt and default is undisputed and proved it to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 E F, Bidadi Industrial Area, 2nd Phase, Sector 1 Talakuppa Village, BidadiHobli, Ramanagar District, Bangalore 562109. The Nominal/ Authorised Share Capital of the Company is ₹ 15,00,00,000/- (Rupees Fifteen Crores Only) divided into 1, 50,00,000/- equity shares of ₹ 10/- each and the issued subscribed and paid up capital is ₹ 12,37,31,570/- (Rupees Twelve Crores Thirty Seven Lakhs Thirty One Thousand Five Hundred and Seventy only) divided into 1,23,73, 157 equity shares of ₹ 10/- each. (3) It is stated that the Operational Creditor entered into an Agreement for Providing Catering and Canteen Services with the Corporate Debtor on 14.12.2015 (which is referred to as Agreement) for a period of one year from 4th January, 2016.As provided in the Agreement, further two Addendums dated 13th December, 2016 and 28th August, 2017, were executed between them by modifying certain terms and conditions of the Agreement which includes terms of agreement. In terms of the Agreement, the Operational Creditor started rendering services to the Corporate Debtor at Plot No. 19 E F, situated at Bidadi Industrial Area, 2nd Phase, Sector-I, Talakuppe Village, BidadiHob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds from their parent Company, and further requested to clear the outstanding payment at the earliest. (6) The Operational Creditor, vide its letter dated 12th September, 2018 requested the Corporate Debtor to make payment of the outstanding dues of ₹ 25,93,350/- failing which the Operational Creditor would levy interest if the amount is not paid within 7 days. Despite duly receiving the reminder letters, the Corporate Debtor not only failed to reply to the said letters but also failed to pay the outstanding amount. Therefore, the Operational Creditor/ Petitioner through its Solicitors, issued an notice dated 18.12.2018 as per Form 3 of the 1 B code, 2016 to pay a sum of ₹ 26, 79,969/- (Rupees Twenty Six Lakhs Seventy Nine thousand Nine Hundred and Sixty Nine only), but no reply was received to the said notice. Hence the petition. 3. Heard Mr. George Philip, learned Counsel for the Applicant/ Petitioner through Video Conference. We have carefully perused the pleadings of the Party and extant provisions of the Code and the Rules made thereunder. 4. Mr. George Philip, the Learned Counsel for the Petitioner, while reiterating various averments made in the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vice President, Segment director (Industries) Email dated 26.08.2018 sent by the Respondent states as follows: On 26.07.2018, at 3.07 PM, MJ Adadia ([email protected] wrote: Dear Mr. Debaprateem Paul, This has reference to the telephonic discussions we had yesterday evening on the subject. We sincerely regret the non release of payment to you for the last 4 months. We very well understand the hardship being faced by you due to delay in payment from our side. Based on our yesterday discussions today I have taken up the matter strongly with our parent company at Singapore and requested them to remit the required funds informed by them that they will release your outstanding payments. I have been informed by them that they will release your payments in 2 instalments. 1st instalment will be by August 7, 2018 and 2nd instalment by August 25, 2018. As per our record we hereby confirm an outstanding payment of ₹ 26, 65, 600.00 for the service provided by Sodeso from March to June 2018 (4 months. As mentioned balance 13, 32, 800 by August 2018. We wish to place on record our sincere appreciation for your gesture and while hearte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord in the Company petition, and the settled principles of law. 7. It is relevant to refer essential terms and conditions of the Agreement dated 14.12.2015, Clause 10 deals with respect to termination of the Agreement, which reads as under: 10. Terms and Termination: 10.1 Terms : This agreement shall take effect and become binding upon the parties on the Effective Date of this agreement and shall remain in full force for a period of one (1) year or until the earlier termination or notice by either party to other party pursuant to Clause 10.2.3, that it is terminating this Agreement. 10.2 Termination: 10.2.1 Notwithstanding anything contained in this Agreement, and without prejudice to its other rights in law or equity and without any liability and judicial intervention, this Agreement may be terminated by the party not in default (the Non-Defaulting party) by giving a thirty (30) days' written notice to the party in default (the defaulting party) if any of the following events (hereinafter referred to as a n Event of default ) occurs: a. Either party commits a breach if this Agreement and such breach, if capable of remedy, is not remedied by the Defaulting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arbitration and the award shall be English. Clause - 16 deals with Force Majeure which reads as under: FORCE MAJEURE: Notwithstanding anything to the contrary in this Agreement, neither party shall be liable by reason of failure or delay in the performance of its duties and obligations under this Agreement if such failure or delay is caused by acts of God, war, riot, fire civil commotion, strikes, lock-outs, embargoes, any orders of governmental, quasi-governmental, or local authorities or any other similar cause beyond its control and without its fault or negligence. 8. As asserted by the Learned Counsel, the outstanding amount in question is primafacia found to be due from the Respondent. However, it is relevant to point out that the original Agreement dated 14.12.2015 was effective for a period of one year from 04.01.2016. However, the main agreement was amended vide addendum dated 13.12.2016 by extending the terms of the agreement for the additional period of one year i.e. till 30.11.2017. Again it was extended by addendum dated 28.08.2017 extending till 30.06.2018. However, the Invoices against the claim made are dated 11.05.2018, 08.06.2018, 10.07.2018 and 02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Code cannot be invoked to settle the dispute(s) or to recover the alleged outstanding amount. Admittedly the Petitioner has not invoked other remedies available except the provisions of the code by issuing demand notice. The mere acceptance of the debt in question by the Respondent would not automatically entitle the Petitioner to invoke the provisions of the Code, unless the debt and default is undisputed and proved it to the satisfaction of the Adjudicating Authority. As per the copy of Annual Returns for the Financial year 2017-18, filed by the Petitioner in respect of the Respondent Company, its turnover and net worth are ₹ 103,322,162 and ₹ 1,325,365,853/ respectively. Therefore, the Respondent Company prima facie appears to be solvent Company so as to resolve the issue of outstanding amount in question. The NCLT is conferred power, even to refer the matter pending before it, to Mediation and Conciliation. U/ s 442 of the Companies Act, 2013. The Adjudicating Authority, being NCLT, U/ s 60(1) of the Code, can suo motto refer the matter to either Mediation and Conciliation or to Arbitration to settle the dispute. Since, this already Arbitration clause is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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