Ch. Mohd. Sharief Tariq, Member - (1.) Under adjudication is an application which came to be filed under Section 9 of the Insolvency And Bankruptcy Code, 2016 (IBC 2016) and numbered as C.A./1/(IB)/2017. The application has been filed by M/s. Alcon Laboratories (India) Private Limited (hereinafter referred to as "Operational Creditor"), having its registered office at Third floor, Crescent-4, Prestige Shantiniketan, Whitefield. Bengaluru-560048, against M/s. Vasan Health Care Private Limited (hereinafter referred to as "Corporate Debtor") having its registered office at No. 70, Dr. Radhakrishnan Salai, Westminster Complex. Mylapore, Chennai-4.
(2.) It has been stated in the application that the Operational Creditor is engaged in supply of certain diagnostic equipments, eye care pharma and vision care products for which the corporate debtor approached the operational creditor in the year 2008 for supply of such products for which the operational creditor and the corporate debtor entered into various agreements/memorandum of understanding. The operational creditor through its consignment agent M/s. Parekh Integrated Services Private Ltd. (Parekh) supplied various products to the Corporate debtor on credit basis and invoices were issued periodically on behalf of the operational creditor. The products supplied by the operational creditor were received by the Corporate debtor without any demur. The corporate debtor used the products without any complaints, but had defaulted in payments towards amount of some of the products supplied, for which the corporate debtor already received invoices. Thereafter, the operational creditor has given several reminders to corporate debtor calling upon to pay the outstanding amount. But the corporate debtor failed to make payment despite having received serveral reminders for payment which resulted in huge amount of outstanding payable to the operational creditor by the corporate debtor. The operational creditor addressed a letter dated 7.12.2015 to the corporate debtor reminding to make payment of the outsanding sum of Rs. 86,65,75,855/- (Rupees eighty six crores sixty five lakhs seventy five thousand eight hundred and fifty five only) payable to the operational creditor as on 30.11.2015. The Corporate debtor vide reply dated 22.12.2015 admitted the outstanding clues as claimed by the operational creditor in its letter dated 7.12.2015 and assured that 80% of the outstanding would be paid in the period between 15.1.2016 and 10.2.2016. Subsequently, an agreement of milestone dated 7.4.2016 was executed between the operational creditor and the corporate debtor wherein it has been expressely admitted and acknowledged by the latter that a total outstanding amount of Rs. 94,74,46,921/- is payable to the former, which the corporate debtor undertook to pay in instalments. A hyphothecation agreement was also entered into between the parties which formed the part of milestone agreement (available at Annexure P10). As per clause II of milestone agreement, it was also agreed by the Corporate Debtor that failure to pay any one instalment would give rise to serious default for which the Corporate debtor would be liable to pay the entire outstanding amount for all supplies made by the operational creditor till that date immediately. However, the corporate debtor failed to pay even the first instalment as per the schedule of payment agreed between the parties in the milestone agreement. Ultimately, the Operational creditor sent a statutory notice under Section 8 of IBC 2016 on 2.1.2017 to the corporate debtor to its office in Chennai, that was received by the Corporate debtor on 6.1.2017. In the statutory notice, 10 days' time reckoning from 6.1.2017 to 15.1.2017 was provided for payment of dues. However, the corporate debtor did neither bother to pay the outstanding amount nor reply to the statutory notice.
(3.) It is on record that the claim was admitted by the corporate debtor and agreed to make the payment as per schedule which is as follows: But the corporate debtor did not adhere to the schedule of payment to be made to the operational creditor.;