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TMI Blog2021 (6) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor stands vested with the Scheme Proponents and as such the Scheme as sanctioned by this Tribunal in respect of the Corporate Debtor is also binding upon the stakeholders of the Corporate Debtor which also includes the Appellant herein. Even though the claim of the Operational Creditor is admitted then as per the waterfall mechanism which has been provided under the Scheme none of the Operational Creditor would have been paid and only the dues of the Financial Creditors have been settled by the Scheme proponents. Appeal dismissed. - IA/840/IB/2020 in MA/289/2018 in TCP/10/IB/2017 - - - Dated:- 1-6-2021 - R. Varadharajan, Member (J) And Anil Kumar B., Member (T) For the Appellant : Vidur Bhatia, Advocate For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 60% on delivery of goods by BHEL at the delivery point; and e. 5% upon submission by BHEL of all final certified documents or three months of dispatch of compressor and turbine, whichever is earlier. 3. It was submitted that the payments as to above (a to c) were required to be released directly to BHEL within 30 days from the date of submission of invoice and for the payments under (d to e) above, irrevocable letter of credit was required to be opened by NOCL two months prior to start of dispatches. Further, it was submitted as per Clause 6 of the Purchase Order, the Appellant was required to deliver the goods at Hyderabad on or before 10.06.2011. As per Clause 3 of the Purchase Order, it was specifically provided that transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.11.2011, the Appellant informed the Corporate Debtor that the recycle gas compressor was ready for dispatch but the Letter of Creditor had not yet been opened, to which the Corporate Debtor replied to the Appellant that due to the revised project start up schedule, the equipment ordered for the DHU unit would be under hold and requested the Appellant to hold the dispatch of the ordered compressor until such time a decision was taken by the Corporate Debtor during April 2012. 7. The Learned Counsel for the Appellant submitted that they had sent a letter to the Corporate Debtor on 21.02.2013 indicating that the Corporate Debtor had given several commitments to open the Letter of Credit for one and a half years but the Letter of Credit wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of ₹ 15,73,52,709/- comprising of a Principal amount of ₹ 9,00,60,000/- and interest for an amount of ₹ 6,72,92,709/-. It was submitted that by an e-mail dated 23.02.2019, the Respondent has stated that the claim of the Appellant is still under verification and thereafter the Appellant has received no information about its claim. However, on 28.08.2020, it was stated that the Respondent informed the Appellant for the first time that its claim had been rejected in its entirety and the reason stated by the Respondent was that Recycle compressor manufactured by the Operational Creditor were not delivered at site and hence not admitted. Thereafter, it is seen that the Appellant has sent an e-mail to the Respondent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that as per the terms of the Purchase Order, the Corporate Debtor shall be entitled to terminate the Purchase order, if any or all of the goods do not reach the place of delivery on the day that the maximum amount of liquidated damage has been reached. Further, it was also contended that the Corporate Debtor is entitled to liquidated damages in the amount of one percent (1%) of the Purchase Order price, subject to a maximum of 10% if any or part of the goods do not reach the place of delivery on or before the delivery date mentioned in the Purchase Order. 11. Further, it was submitted by the Learned Counsel for the Respondent that the Corporate Debtor has paid a massive sum of ₹ 9.06 Crore to the Appellant, for which ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code, 2016 was approved by this Tribunal vide its order dated 18.03.2021 passed in CP/546/CAA/2020. As per the said Scheme proposed by the Scheme proponent viz. M/s. Haldia Petrochemicals Limited, the Project Assets of the Corporate Debtor stands vested with the Scheme Proponents and as such the Scheme as sanctioned by this Tribunal in respect of the Corporate Debtor is also binding upon the stakeholders of the Corporate Debtor which also includes the Appellant herein. Further as per the decision of the Supreme Court in the matter of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta Ors. in Civil Appeal No. 8766 - 67 of 2019, the successful scheme proponent cannot be suddenly faced with an 'undecided' cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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