R.P. Nagrath, J. - (1.) The instant petition has been filed by the operational creditor, seeking to set in motion the corporate insolvency resolution process as contemplated under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred here-in-after as the Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity Rules) in relation to M/s. Isolux Corsan India Engineering & Construction Pvt. Ltd. (for short the Corporate Debtor). The registered office of the Corporate Debtor is situate at Gurgaon in the State of Haryana. The Corporate Debtor was incorporated on 25.06.2008. Copy of the Certificate of Incorporation with the Memorandum and Articles of Association is at Annexure II-A. FACTS.
(2.) It is stated that the Corporate Debtor had availed the consultancy service of the petitioner/operational creditor in relation to awarding of a project for developing and executing the transmission system at Mainpuri and associated works on a build, own, operate and transfer (BOOT) basis (Project) bids for which were invited by the Uttar Pradesh Power Transmission Corporation Limited (UPPTCL), The Corporate Debtor entered into a Service Agreement dated 08.07.2010 (for brevity the Service Agreement) with the petitioner. Under the terms of clause 3 of the Service Agreement, the Corporate Debtor undertook to pay the applicant total amount of Rs.84 crores towards consultancy for the services rendered along with all taxes such as service tax etc. to be paid over and above the said consultancy fee. Copy of the agreement is Annexure II-C. The project was awarded by UPPTCL to the Corporate Debtor on 05.07.2011. As per the terms of the agreement, the amount of operational debt was payable by the Corporate Debtor by the later of the following: "i) Within 120 days of the signing of the documents by the Isolux regarding the award of the Project; or ii) The financial closure of the Project," According to the applicant, there was a final financial closure of the project on 01.05.2014, which is said to be the date, on which the debt is said to have fallen due and the default committed by the Corporate Debtor.
(3.) The facts as highlighted further in the application in Form 5 are that on 15.03.2016, the Corporate Debtor had fraudulently induced the applicant to enter into a Final Settlement and Consultancy Agreement dated 15.03.2016 (Final Settlement Agreement) in order to fully and finally settle their claims and dues without any intention to honour its obligations. In terms of the Final Settlement Agreement, one M/s. South East U.P. Power Transmission Company Limited ("SEUPPTCL") a subsidiary of the respondent had undertaken to pay to the applicant, an amount of Rs.38 crores along with direct and indirect taxes as full and final settlement of the amount for the services rendered by the applicant However, neither the respondent nor SEUPPTCL made any payment to the applicant on the basis of the Final Settlement Agreement. The copy of Final Settlement Agreement dated 15.03.2016 is at Annexure II (D).;