Bikki Raveendra Babu, Member - (1.) M/S. Nagai Power Private Limited filed this Application with a prayer to trigger Corporate Insolvency Resolution Process against Respondent/Corporate Debtor under Section 9 of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as "the Code"].
(2.) The facts in brief, that are germane for disposal of this Application are as follows; 2.1. Applicant entered into an Agreement for supply of power plant equipments with Nagarjuna Construction Company Limited (NCC Ltd.) vide Contract No. NPPL/EPC/AGMNT for SUPPLY/001 dated 7.7.2010. Respondent approached NCC Ltd., with a request for a sub-contract in relation to Air Cooled Condenser and agreed to provide Design, Engineering, Manufacture, Inspection, Testing, Packing and forwarding and supply of one Air Cooled Condenser and associated equipment including start-up and Commissioning Spares. NCC Ltd. accepted the same and issued a Letter of Award dated 6.2.2012 for a contract value of Rs. 26,90,00,000/- only with the consent of Applicant. 2.2. As per the terms of the Letter of Award dated 6.2.2012, Respondent was obligated to supply all equipments under the Letter of Award and was bound to supply within 12 months from the date of the Letter of Award and receipt of advance (vide Clause 5.0 of Letter of Award). 2.3. Applicant made advance payments to the tune of Rs. 4,03,50,000/- in three Branches and the said payments were acknowledged by the Respondent on several occasions. Respondent was obligated to supply equipments within 12 months from the date of receipt of advance amount, i.e., from 10.7.2013. However, Respondent failed to adhere to the terms and conditions of Letter of Award and did not supply the material. 2.4. Thereafter, Novation Agreement dated 6.1.2014 was entered into between the Applicant, NCC Ltd., and Respondent wherein NCC Ltd., agreed to short close its Supply Agreement and requested the Applicant to take over all its rights and obligations under the Letter of Award released to the Respondent. 2.5. In view of the Novation Agreement dated 6.1.2014, Applicant stepped into the shoes of NCC Ltd. The obligation of the Respondent to execute the work and supply the machinery in terms of Letter of Award remained intact and enforceable by Applicant. 2.6. Inspite of the repeated reminders given by the Applicant, Respondent failed to return the advance amount paid by the Applicant. Respondent also failed to adhere to the terms and conditions of the Letter of Award. Respondent clearly acknowledged the receipt of the advance amounts totalling Rs. 4,03,50,000/-. It is evidenced in the Minutes of the Meetings held on 20.3.2015 and 5.12.2015 wherein the Respondent requested further time for supply of material. Respondent in the Meeting dated 5.12.2015 agreed to give corporate guarantee admitting the liability to the Applicant. The Deed of Corporate Guarantee was executed by the Respondent on 26.4.2014. It was extended from time to time as evidenced by the Minutes of Meeting dated 5.12.2015. According to the Applicant as on the date of filing of the Application an amount of Rs. 4,03,50,000/- with 24% interest p.a. from 30th March, 2012 is due and payable by the Respondent. 2.7. The last payment was made by the Respondent in November 2014. Inspite of repeated reminders Respondent did not pay any amount thereafter. Ultimately Respondent by Mail dated 17.8.2015 enclosed the statement of account and ledger account of the Respondent confirming that the outstanding balance amount was due and payable to the Applicant. Ultimately Applicant was forced to terminate the Letter of Award vide letter dated 27.4.2016. Applicant issued a legal notice dated 9.6.2015 calling upon the Respondent to pay Rs. 4,03,50,000/- with 24% p.a. from 30th March, 2012 within 21 days from the date of receipt of the notice. On 26.10.2016, Applicant sent a notice to the Respondent invoking the Corporate Guarantee dated 26.4.2014 which was extended vide Deed of Extension dated 5.12.2015. Inspite of invocation of the Corporate Guarantee, Respondent failed to make payment either by repaying the outstanding dues under the Letter of Award or under the Corporate Guarantee. Applicant issued a demand notice dated 4.1.2017 under Section 8(1) of the Code. Respondent replied to the demand notice making time-barred, baseless and unsupported claims on 31.1.2017. Applicant issued another notice of demand on 9.5.2017. Respondent gave reply by sending letter dated 22.5.2017 to which the letter dated 31.1.2017 was attached.
(3.) It is stated by the Applicant that Respondent did not provide details of any suit or arbitral proceedings commenced in relation to the operational debt as required by Section 8(2)(a) of the Code prior to issuance of notice of demand. It is stated that claim is not barred by limitation. It is also stated that the Registered Office of the Respondent in Bhopal, Madhya Pradesh is within the jurisdiction of National Company Law Tribunal, Ahmedabad. Applicant has not proposed the name of Interim resolution Professional but requested the Tribunal to invoke Section 16 of the Insolvency Code.;