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TMI Blog2021 (4) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... ant s own case that in the month of July 2019, the Liquidator had signed a program with the Appellant for supply of balance materials and execution of site works within a timeline in order to keep the Corporate Debtor a going concern - the claim of the Appellant is in contemplation of an event where the Corporate Debtor does not receive a bid as a going concern. Admittedly, there has been delay in execution of the contract, the blame of which is being laid on the other party by the either side. However, the delay in execution of the said contract cannot form basis of a claim of such nature in a proceeding such as this, especially when such claim is contingent on Corporate Debtor not being sold as a going concern - furthermore, allowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ratnanko Banerji, learned Senior Counsel appearing for the Appellant. 2. Mr. Banerji submitted that the Appellant herein had awarded two contracts to the Corporate Debtor bearing Contract No. CS-0370-162C-2-FCCOA-0015 and Contract No. CS-0370-162C-2-SC-COA-0016 on 14.05.2013. The contracts were awarded for the design, engineering, procurement/manufacture, shop fabrication, assembly, etc., covered under Ash Handling and Ash water Recirculating System Package for Nabinagar Super Thermal Power Project (3x660 MW) as per Bidding Documents No. CS-0370-162C-2. 3. The Corporate Debtor failed to complete a substantial portion of the supply and installation works within the prescribed time and sought for extension of time, the last extension w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 44,03,97,876/- 6. Material (Structural Steel) issued on loan ₹ 6,39,14,305/- Total ₹ 71,33,65,128 /- [₹ 71,33,64,588 /-] 5. Mr. Banerji stated that upon the Corporate Debtor being admitted to Insolvency vide Order dated 30.07.2018, Appellant had filed a claim in Form F with the Resolution Professional on 26.10.2018. No additional documentation other than whatever submitted by the Appellant, was called for by the Resolution Professional. Therefore, the Appellant believed that the claim in its entirety was accepted by the Resolution Professional. He further stated that on 29.10.2018, the Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor started execution of the package and has already completed substantial portion of the package, i.e., about 90% of the supply and 40% of erection, Mr. Dipankar Das submitted. 10. Mr. Dipankar Das further submitted that, first unit has already been commissioned and is presently under commercial operation utilizing the Ash Handling Package. The work is still continuing, the commissioning of second unit is expected to be taken up soon and the third unit will be commissioned subsequently. Since the execution of the project is continuing and ongoing on daily basis, therefore the claim made by the Appellant is pre-mature. 11. Mr. Das submitted that, there was a delay in release of fund for execution of this package and entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay of 3 years. In the event such delay continues, the Appellant will have to award the balance work to the other vendors at risk and cost basis taking into account the prevailing market price as per contractual provisions. Hence, the claim towards cost estimate for award of balance work of at the prevailing market rate needs to be considered and admitted, Mr. Banerji submitted. 14. While denying that there was any delay in release of funds for execution of the package, Mr. Banerji further submitted that the Liquidator along with the officials of the Corporate Debtor was to continue business as a going concern. In furtherance of the same, in the month of July 2019, the Liquidator had signed a program with the Appellant for supply of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from, inter alia, para 15 of the Appeal, wherein the Appellant has submitted that The Liquidator has rejected the claim of the Appellant on the ground that the Corporate Debtor shall remain a going concern even during the liquidation period. However, such ground does not safeguard the Appellant from subsequent development in the liquidation process of the Corporate Debtor, where the Corporate Debtor does not receive bids for its assets being a going concern. Such circumstance is highly likely... . 18. Admittedly, there has been delay in execution of the contract, the blame of which is being laid on the other party by the either side. However, the delay in execution of the said contract cannot form basis of a claim of such nature in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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