Deepa Krishan, Member - (1.) The "Operational Creditor", M/s Dolphin Offshore Enterprises (India) Ltd. has filed the instant application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') with a prayer for initiating the Corporate Insolvency Resolution Process against the "Corporate Debtor", M/s Instrumentation Limited (for brevity the 'Corporate Debtor'). It is appropriate to mention that the 'Operational Creditor' is a Public Limited Company having its registered office at 1001, Raheja Centre, 214, Nariman Point, Mumbai-400021 and bearing identification no. L11101MH1979PLC021302. The 'Corporate Debtor' is a Public Limited Company and is a Government of India enterprise with CIN No. U29299RJ1964GO1001174. It was incorporated on 31.03. 1964.The registered office is located at Jhalawar Road, Kota, Rajasthan 3224005.
(2.) It is stated in the application that the Corporate Debtor was awarded a contract by ONGC for executing structural modification work at 27 unmanned platforms in Maharashtra for development of modular rig. This contract was notified on 29.05.2009 and a copy of the notification has been annexed with the application. The lump-sum price of the tender was Rs. 142,11,58,500/- and was inclusive of all taxes, duties, levies, insurance, octroi etc. The completion period of the work was 730 days inclusive of monsoon period from the date of notification of award i.e. by 28.05.2011. It is, subsequently, stated that Corporate Debtor issued LOINo. MDD/BN/OP-4109001/LOI dated 10.06.2009 against the said contract to the applicants for structural modification work at unmanned platforms in Maharashtra for deployment of modular rig on turn key basis on 16.06.2009. This LOI was to be executed on the lump-sum basis for Rs. 106,01,18,000/-. Our attention has been drawn to the fact that this LOI issued to the applicant by Corporate Debtor was a back to back contract and all the terms and conditions were taken to be binding on the Applicant. The scope of work as well as the performance bank guarantee and warranty to be submitted to ONGC was to be done by the Applicant on behalf of the Corporate Debtor to ONGC directly. Rest of the terms and conditions of the contract binding the Coiporate Debtor and ONGC were made applicable on the Applicant on back to back basis and the same was clearly spelt out in the LOI issued by the Coiporate Debtor 1 to the Applicant dated 16.06.2009. A copy of the same is attached (Annexure IV). 2.1 The Corporate Debtor issued another LOI against ONGC's project issued to the Corporate Debtor for completion of structural modification work at unmanned platforms in MH for deployment of Modular rig. The said LOI was issued for structural modification at 7 unmanned platforms and was issued on 30.07.2009 a lumpsum basis for which the amount was Rs. 33,48,82,000/-, A copy of the aforesaid LOI is attached hereto as (Annexure V). 2.2 It has been submitted that the said LOI dated 16.09.2009 and 30.07.2009 were further amended vide amendment letters dated 17.02.2010 (First Amendment), 23.0 9.2010 (second Amendment) and (Third Amendment) 19.04.2011. 2.3 Further, third amendment LOI No. MDB/BM/OP-4109001/WO/A-7/AMD-3 dated 19.04.2011 for addition of job for structural modification of five platforms at a lumpsum price of Rs. 4,39,66,075/-. This was taken to be an additional job as compared to the earlier two LOIs. A copy of the aforesaid third amendment LOI dated 19.04.2011 is marked as Annexure-VIII. It is stated that the Applicant completed all the works assigned to it by the Corporate Debtor on behalf of ONGC within time. The completion certificate from ONGC for N-4 was issued on 17.12.2010, for N-6 was issued on 15.12.2010 and for N-9 was issued on 11.03.2011. In pursuance of the jobs done and completed, the Applicant raised invoices for which only part payments were received. It is further submitted that there was no detailed sub-contract agreement signed between the Applicant and the Corporate Debtor. The entire contract issued to the Corporate Debtor by ONGC was fully sub-contracted to the Applicants and it was agreed that all works as well as the terms and conditions applicable qua the contract between ONGC and the Respondent No. 1 were taken to be the terms and conditions applicable on the applications vis-a-vis the respondent No. 1/ONGC.
(3.) The applicant filed an application under section 9 of the Insolvency and Bankruptcy Code (hereinafter referred to as Code) before this Tribunal. In part-4 of the application, the total amount of the debt claimed is as follows: - JUDGEMENT_115_LAWS(NCLT)10_2017_1.html JUDGEMENT_115_LAWS(NCLT)10_2017_2.html JUDGEMENT_115_LAWS(NCLT)10_2017_3.html Rs. 4.90 Crores as principal amount and Rs. 2,62,55,270,00 towards interest on the principal amount as raised vide invoices dated: - Int. invoice-20.12.2011 Rs. 1,05,96,919.00 Int. invoice-25.04.2013 Rs. 1,31,91,432.00 Int. invoice - 22.07.2013 Rs. 24,66,919.00 Total Interest Invoice is Rs. 2,62,55,270.00 Details of the transaction: Letters dated 16.06.2009, 30,07.2009 and amendments dated 17.02.2010, 23.09.2010 and 19.04.2011 in relation to ONGC project for 'Structural Modification work at unmanned platforms in MH for deployment of Modular rig on turnkey basis.' Further, the claimant also submits an extra claim of Rs. 12,70,72,828/- which is on back to back terms the Respondents have with ONGC. The claimant reserves its right to initiate appropriate legal proceedings in the event the Respondent fails to get the payment from ONGC for the said extra claims. The aforesaid principal amount of Rs. 4.90 Crores fell due on September 09, 2011. 3.1 The applicant has attached the following copies of invoices and letters along with the application in order to prove the existence of operational debt and the amount in default. 1. Copy of invoices raised towards principal amount of Rs. 4.90 Crores and towards interest amount of Rs. 2,62,55,270 as follows: 2. Letters in relation to contract (work order) awarded to Dolphin Offshore Enterprises (India) Limited and amendment letters regarding original work order as follows: 3. Letters as issued by Instrumentation Limited in favour of Dolphin Offshore Enterprises (India) Limited as follows:;