- (1.) This Company Petition is filed by Elecon Engineering Co. Ltd. (hereinafter called "Petitioner") seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Enviro Bulkk Handling Systems Pvt. Ltd. (hereinafter called "Corporate Debtor") alleging that Corporate Debtor committed default in making payment to the extent of Rs. 4,10,99,075/-inclusive of interest @ 22% p.a. up to 31.03.2017, the actual date of default being 23.03.2010, by invoking the provisions of Sections 8 and 9 of I & B Code (hereinafter called "Code") read with Rule 5 and 6 of Insolvency & Bankruptcy (AAA) Rules, 2016.
(2.) The Petitioner is engaged in design, manufacture and supply of equipments for coal handling. On 21.02.2009 Corporate Debtor placed Purchase Order on the Petitioner for the supply of engineering equipments such as .crusher, stacker, reclaimer, etc. for Rs. 8,35,25,000/-. One of the terms in the Purchase Order provides that Corporate Debtor have to release 10% of Order value as advance against Advance Bank Guarantee to be provided by the Petitioner. As per the instructions of Corporate Debtor, the Petitioner supplied the manufactured material between 03.03.2tni) and 10.06.2011 and the unpaid invoices are annexed to Petition at page Nos. 24 to 232. The amount in default is given in the computation as below: a) Unpaid invoices 1,07,52,502.00 b) Retention money 83,52,500.00 c) Interest 22% p.a. 2,58,94,023.00 4,49,99,075.00 Less: Debit Note as per Minutes of Meeting (MoM) dtd. 9.7.2016 39,00,000.00 Total 4,10,99,075.00
(3.) The demand notice under the IB Code was issued by the Petitioner on 03.04.2017 which was not responded by the Corporate Debtor. Admittedly, the claim pertains to invoices raised between 03.03.2010 and 10.06.2011, the Petitioner to say that the claim is not hit by limitation, heavily relies on a minutes of a meeting dated 09,07.2016 between the officers of the Petitioner and Corporate Debtor, which is reproduced as below: "Minutes of Meeting between Mis. Enviro Bulkk & Mis. Eiecon EPC dated 09.07.2016 held at Enviro Head Office, Pane Members Presents: Enviro Bnlkk Eiecon EPC Mr. Milind Dixit Mr. Kushal Patel Mr. Pravin Dumale Mr. Alpesh Thakar Mr. Nitin Patil Points were discussed during meeting are as under: a) Debit of Rs. 39 Lacs is accepted by Mis. Eiecon, details of debit note is as per attached Annexure. b) Enviro Bulkk levied Liquidated Damages of HI.76 Lacs however, Elecon has not accepted the same. This issue of Liquidated Damages is to be discussed at higher level of Elecon & same to be resolved before this month end. c) Enviro agreed progressive outstanding payable to Elecon is Rs. 107.525 Lacs.";