B.S.V. Prakash Kumar, Member - (1.) It is a Company Petition filed u/s. 9 of the Insolvency and Bankruptcy Code by the Operational Creditor namely Power House against the Corporate Debtor namely Nutri First Agro International Pvt. Ltd., stating that this Corporate Debtor availed supply of goods and labour services valuing for an amount of Rs.55,28,864/- thereafter, this Corporate Debtor having failed to make payment for the same except a payment of Rs.6,75,000/-, this Operational Creditor filed this Company Petition to initiate Insolvency Resolution Process against this Corporate Debtor company stating that the amount claimed to be in default as on 02.07.2016 is Rs.48,53,864/-. Brief facts of the case:
(2.) The Operational Creditor herein submits that since the Creditor is in the business of electrical works and also supply of labor in relation to installation of the electrical equipment to the customer whoever approached this company, this Corporate Debtor approached this Operational Creditor with a Purchase Order dated 27.11.2015 for supply of electrical material for an amount of Rs.25,31,250/- with payment terms saying that this Corporate Debtor would advance 30% of the basic order value along with Purchase Order, thereafter 60% with 100% taxes after inspection against Proforma Invoice, prior to dispatch and then final payment of 10% of the basic order value after installation and commissioning against submission of 10% Corporate Performance Guarantee/Directors' Indemnity Bond for performance varying for 18 months from the date of delivery or 12 months from the date of commissioning whichever is earlier. It is also pertinent to mention that it has been mentioned in his agreement, if at all any issue arose in between, it has to be referred to mutual resolution before an Arbitrator within the territorial jurisdiction of Pune Court.
(3.) The Operational Creditor soon after receipt of this Purchase Order from this Corporate Debtor, issued Proforma Invoices giving description of the materials and value of the materials on 30.11.2015, soon thereafter, as they earlier agreed in between them a joint inspection, it was conducted on 11.03.2016 prior to dispatch and mentioned in the joint Inspection Report that the material inspected is clear and found satisfactory to the Corporate Debtor. In view of the same, the Corporate Debtor instructed the Operational Creditor to dispatch the panel to the Corporate Debtor, accordingly the Operational Creditor delivered the goods to the corporate Debtor and obtained Delivery Challans dated 16.03.2016 duly acknowledged from the Corporate Debtor. Since the Tax Invoice also to be raised soon after supply of this goods, Tax Invoice was raised on 13.04.16 for the total amount of Rs.25,31,250/-. In the said invoice, it has been mentioned that the Operational Creditor is entitled to @ 24% interest per annum on the cost of the material supplied to the Corporate Debtor, if it is not paid within due date as mentioned in the Purchase Order. Soon after supply of these goods, when the Corporate Debtor had again come up to the Petitioner with a Letter of Intent dated 29.03.2016 seeking labor assistance for installation of the material for site electrification with payment terms of 80% advance, 15% after erection completion, remaining 5% of Order Value would be held with the Debtor till completion of defector liability period as retention money. Since this Corporate Debtor was in need of further material, it has issued another Purchase Order on 29.03.2016 for supply of the material for an amount of Rs.19,25,085.20, on the said Purchase order, this Operational Creditor again supplied goods and obtained Delivery Challan on 28.07.2016 from this Corporate Debtor. On the Purchase Order made by the Corporate Debtor, this Petitioner again raised Proforma Invoice on 02.08.2016 for an amount of Rs. 19,25,085.20 towards the goods supplied by this Petitioner. Since there is a miscellaneous supply in between, they have also been annexed to this Company Petition. For the total amount towards the supply of goods and services to the Petitioner herein comes to Rs.55,28,865/-, the Corporate Debtor made a payment of only Rs.6,75,000/- on 01.12.2015. This payment came on 01.12.2015 because the Corporate Debtor was to make first advance towards Purchase Order made by it. He paid that money; thereafter no payment has been made by this Corporate Debtor till date, though this Petitioner issued notice u/s. 271 of Companies Act 2013 on 01.02.2017. The Petitioner perhaps realizing that the said notice is not in accordance with law, it did not proceed further on the said notice. Though the Petitioner mentioned about the due outstanding and giving details of the debt payable by the Corporate Debtor, the Corporate Debtor instead of giving any reply to the said notice, remained silent until notice u/s. 8 of The Insolvency and Bankruptcy Code received on 23.04.2017 from the Petitioner.;