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TMI Blog2021 (5) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... cient opportunity, the Respondent also failed to produce its audited financial statements or any other proof of its solvency. Application admitted - moratorium declared. - C. P. (IB) No. 181/BB/2020 - - - Dated:- 26-4-2021 - Ravikumar Duraisamy, Member (J) And Ashutosh Chandra, Member (T) For the Appellant : Suman K.S., Adv. For the Respondents : S. Rajesh, Adv. ORDER Ashutosh Chandra, Member (T) 1. C.P. (IB) No. 181/BB/2020 is filed by Kedari Foundation, a registered partnership firm (hereinafter referred to as 'Operational Creditor/Petitioner) under Section 9 of the IBC, 2016 R/w Rule 6 of the I B (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process in respect of Sri Indra Power Energies Limited (hereinafter referred to as 'Corporate Debtor/Respondent') on the ground that the Corporate Debtor has committed default for a principal outstanding amount of ₹ 1,14,85,479.45 (Rupees One Crore Fourteen Lakh Eighty Five Thousand Four Hundred Seventy Nine and Paise Forty Five Only) comprising of principal due of ₹ 90,00,000 (Rupees Ninety Lakh only) along with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from IREDA and did not issue authorisation letter to the Petitioner thereby breaching the terms of the contract due to which the contract stands cancelled. The Respondent is liable to return ₹ 90 Lakh paid by the Petitioner in pursuance of 1st instalment. (5) It is submitted that despite several requests, the Respondent has not repaid the outstanding due of ₹ 90 Lakh along with interest at 18% p.a. till date. The Petitioner issued Demand Notice dated 06.08.2019 under section 8(1) of IBC, 2016 which was duly served on the Respondent on 08.08.2019 but the Respondent has not made any payment towards the due amounts stated in the Demand Notice to the Petitioner till date. It is stated that the Respondent was facing financial distress and decided to dismantle the power plant. The Respondent had also availed a loan from IREDA and since the Respondent could not repay the said loan amount, the Respondent approached the Petitioner for selling its Power Plant. However, the Respondent has now restarted the functioning of the said Power Plant. Copy of Letter from IREDA to the Respondent intimating rescheduling the Loan Agreement is annexed to the Petition. (6) The Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of said Agreement the Petitioner was required to pay a sum of ₹ 1,20,00,000/- (Rupees One Crore Twenty Lakh only), the moment, the Respondent Company furnishes NOC from IREDA. Further, NOC dated 16.08.2018 was given to the Petitioner and had requested the Petitioner to make payments within 35 days as per the terms of the said Agreement. Copy of NOC from IREDA dated 16.08.2018 is annexed to the Objections. Relevant portion of the NOC is extracted herein below: We acknowledge your letter dated 25th July 2018, 27th July 2018, 9th August 2018 and 11th August 2018 with request for sale of plant and machinery as scrap and consequently payment of ₹ 3.0 Cr from sales realization to IREDA for settlement of outstanding dues. Your request has been examined and competent authority in IREDA has No Objection to sell the project plant and machinery for sale consideration of minimum ₹ 3.0 Cr subject to fulfillment of following condition; 1. The purchaser shall pay the entire sales value directly in the bank account of IREDA as communicated vide letter dated 27th July 2018 2. The company shall submit the sale agreement entered with the purchaser immediately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Kishan v. M/s. Vijay Nirman Company Pvt. Ltd. [(2018) 1 SCC 353] wherein it was held that IBC, 2016 cannot be invoked wherein bona fide disputes exists between the Parties. (4) The Respondent submits that it is a solvent company which is functioning and has 40 employees and is capable of paying its debts hence, IBC proceedings are not maintainable. Hence the petition deserves to be dismissed. 4. The Petitioner filed its Rejoinder bringing it to the notice of this Bench that the Petitioner: (1) It is submitted that as per the agreement, the Respondent was to obtain NOC from IREDA for starting dismantling of the equipment and communicate the same to Petitioner within 15 days from the date of Agreement, granting authorisation to the Petitioner for dismantling the equipment. However, NOC was never furnished to the Petitioner. (2) Since no NOC was furnished and no authorisation letter was issued, no payment of ₹ 1,20,00,000/- which was to be made within 35 days of providing NOC was made. (3) Further, assuming that the said NOC letters dated 09.08.2018 and 16.08.2018 are correct, it is pertinent to note that IREDA mandated payment of all amounts by the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, the Respondent has annexed the NOC dated 09.08.2018 and 16.08.2018 received by the Respondent from the IREDA. However, it is imperative to state here that the Respondent has not annexed any proof of communication of the NOC letters to the Petitioner. Further, the Respondent states in the Statement of Objections that vide email dated 26.09.2018 sent to the Petitioner by the Respondent, the dates of default committed by the Petitioner have been mentioned and the Agreement dated 23.07.2018 has been cancelled on account of the Petitioner's failure to adhere to the terms of the Contract. However, it is again found on perusal of annexures that there is no email dated 26.09.2018. In place of an email, a letter addressed to the Petitioner company dated 26.09.2018 is annexed without any proof of service or acknowledgement on part of Petitioner for having received the same. 8. It is pertinent to mention that the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited v. Kirusa Software Private Limited, (2018) 1 Supreme Court Cases 353, held: All that the adjudicating authority is to see at the stage of admitting/rejecting the application is whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Company petition bearing C.P. (IB) No. 181/BB/2020 is hereby admitted by initiating Corporate Insolvency Resolution Process (CIRP) in respect of the Respondent Corporate Debtor, namely, Sri Indra Power Energies Limited with the following consequential directions: (1) Mr. Gonugunta Murali, bearing Registration No. IBBI/IPA-001/IP-00654/2017-18/11139, who is a qualified Insolvency Professional, is hereby appointed as Interim Resolution Professional, in respect of the Corporate Debtor to carry out the functions as mentioned under the Insolvency and Bankruptcy Code, 2016 and various rules issued by IBBI from time to time; (2) The following moratorium is declared prohibiting all of the following, namely: (a) the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor/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 inte ..... 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