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TMI Blog2022 (10) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2022 - Hon ble Member ( Judicial ) : Justice P. N. Deshmukh ( Retd. ) And Hon ble Member ( Technical ) : Mr. Shyam Babu Gautam For the Operational Creditor : Prachi Rawal i/b SD Israni Law Chambers For the Corporate Debtor : Mr. Abhay Itagi a/w Ms. Monica Varma i/b M.V. KINI Law Firm Associates ORDER Per : Shyam Babu Gautam, Member (Technical) 1. This Company Petition is filed under section 9 ( the Petition ) of the Insolvency and Bankruptcy Code, 2016 (IBC) by KVTEK Power Systems Private Limited ( the Operational Creditor ), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Nuclear Power Corporation of India Limited ( the Corporate Debtor ). 2. The Corporate Debtor was incorporated 03.09.1987 under the Companies Act, 1956. It has its registered office on 16th Floor, Centre -1, World Trade Centre Cuffe Parade, Colaba, Mumbai 400005. Therefore, this Bench has jurisdiction to deal with this petition. Brief Facts of the case: 3. The present petition was filed on 13.03.2019 before this Adjudicating Authority (AA) on the ground that the Corporate Debtor failed to make payment of a sum of INR 47,93,013/- (INR Forty-Sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the intimation regarding the readiness of the site, again deputed their commissioning engineer on 05.12.2015 and completed the commissioning work. However, two discrepancies were observed in the final MOM (Minutes Of Meeting) of installed equipment. One is abnormal sound from the oil pump motor assembly and another Discrepancies in Co2 CO readings as compared to the test results of ERDA. Copy of the email dated 02.11.2015 received from the Corporate Debtor is annexed to the Petition as Annexure A-8 Colly. (pages 90-91) 9. Operational Creditor took up the matter with their principal supplier of the equipment in USA who took time in understanding the problem and then supplying the required sub-assembly which was finally replaced onsite on 22.07.2016 and the issue of abnormal sound was successfully resolved. It is further submitted that the Operational Creditor through their service engineer onsite verbally conveyed to the Corporate Debtor that ERDA lab results cannot be relied upon and Corporate Debtor should get the transformer oil tested from some other test lab like PGCIL test lab in Bhiwadi which is not only NABL accredited lab but also equipped with the best equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexed to the Petition as Annexure A-12 (Colly) (Pages 100-102). Thereafter, Operational Creditor repeatedly followed up with the Corporate Debtor for the payment and several reminder emails were sent to the Corporate Debtor for release of long pending payment. Copy of the reminder emails annexed to the Petition as Annexure A-13 (Colly) (pages 103-107). 13. Operational Creditor further submits that Assessment of Sale was made for the period 2015-16 under Haryana Value Added Tax Act, 2003 vide Demand No.142 imposing penalty for non-submission of Form C as the Corporate Debtor failed to provide C Form despite the delivery of equipment at its premises. Copy of the said Order of Haryana Value Added Tax Act, 2003 dated 14.08.2018 vide Demand No. 142 is annexed to the Petition as Annexure A-14 (pages 108-109). 14. Operational Creditor further submits that again on 06.09.2018, another reminder email was sent stating neither the payment nor the C Form has been received for the past 3 years. Copy of the said reminder email is annexed to the Petition as Annexure A-15 (page 110). 15. The Operational Creditor wrote another email dated 03.11.2018 to the Corporate Debtor reflecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that having retained and used the equipment for the last four years, the Corporate Debtor has now turned dishonest and malafidely denying Operational Creditor of its legitimate demand just because they have not booked the purchase in the given year and now they are having problem in doing so as excise and sales tax are no longer applicable and they need invoice with GST which Operational Creditor cannot legally issue. The failure of not booking the invoice is the year of Purchase by Corporate Debtor is the actual problem that they have not paid till date and the technical problem created by them is just a cover-up. Submissions made by the Counsel for Corporate Debtor: 19. The Counsel for the Corporate Debtor has filed the Affidavit-in-reply on behalf of the Corporate Debtor on 18.11.2019 and submitted that the Petition is not maintainable either on facts or in law as narrated hereunder hence deserves to be rejected. 20. The Corporate Debtor submits that the Operational Creditor has suppressed the true and material facts in the instant case and has preferred this Petition only with an intent to arm twist the Corporate Debtor unto making payment which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VTEK/2015-16/014, was raised by the Operational Creditor without installing the Equipment and without complying with the requisites of Clause 9 of the terms and conditions of the Purchase Order. Hence the claim of the Operational Creditor in respect of the Purchase Order is barred by period of limitation. In view of the above all the Corporate Debtor submits that this subject application is not maintainable as the same is devoid of any merit and contrary to the facts of the case. 26. The Corporate Debtor further submits that there was an inordinate delay in supply and installation of the Equipment on the part of Operational Creditor. As per Purchase Order, the Equipment should have been supplied and installed on or before 28.04.2015. However, the Operational Creditor repeatedly requested the Corporate Debtor vide emails dated 25.04.2015 and 04.05.2015 to extend the original delivery date and as support and co-operation, the Corporate Debtor extended the delivery period upto 15.05.2015. Copy of the said emails dated 25.04.2015 and 04.05.2015 are annexed as Annexure -C (colly) (pages 99-100). The Operational Creditor miserably failed to deliver and install the Equipment even withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Engineer and the officials from both the parties is annexed as Annexure J (pages 112). It is submitted that the Purchase Order will be treated as complete only when the Operational Creditor has satisfactorily installed the equipment and trained the departmental officials of the Corporate Debtor s company. It is further submitted that as per the terms and conditions of the Purchase Order, 100% payment has to be done only on completion of supply of equipment and its satisfactory installation. As none of these requirements were met, the Operational Creditor is not eligible to claim any amount from the Corporate Debtor in respect of the said Purchase Order. 28. It is further submitted that Equipment has been installed un-satisfactorily and Operational Creditor has time and again assured that the issue in the Equipment will be resolved, but all such commitments were turned to be false and never fulfilled. The issue of online DGA which was unsatisfactorily installed has not been resolved till date. A table showing nonsatisfactory performance of online DGA as furnished in the reply to the Demand Notice is annexed as Annexure K (pages 113-184). The Operational Creditor has also a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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