R. Varadharajan, Member - (1.) This is an application filed by the applicant under the provisions of Insolvency & Bankruptcy Code, 2016 (for sake of brevity IBC, 2016) claiming to be an Operational Creditor against the Respondent/Corporate Debtor on the basis that a sum of Rs. 20,50,385/- is due and outstanding payable and is in default and under the circumstances, the Corporate Insolvency Resolution Process (CIRP) is required to be initiated. The facts in brief as averred in the petition are as follows: i) That the Respondent issued a Purchase order dated 28.3.2017 to the Operational Creditor for the supply & installation of 60 KWP Off-grid top Solar Photovoltaic Plants at the factory of Respondent situated at Neemrana, Rajasthan and the value of purchase order being in a sum of Rs. 1.18 crores. ii) The petitioner avers that the erection & commissioning of the Solar PV Plant was completed on 28.12.2011 and that out of the sum of Rs. 1.18 crores, being the total amount payable by the respondent, a balance sum of Rs. 20,50,385/- remains due from 29th Nov, 2012 and since then, the amount has remained in default and no payment has been received from the respondent/Corporate Debtor. iii) In view of the non-payment, it is claimed by the petitioner that a demand notice U/s. 8 of IBC Code, 2016 read with attendant rules was sent to the Corporate Debtor on 20.6.2017 calling for the payment of amount in default. However, instead of making payment, it is stated by the petitioner that Respondent sent a reply dated 7.7.2017 through its Counsel. In view of the non-payment of the amount in default, it is averred by the petitioner that an application as required to be made under the provisions of IBC, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) by an Operational Creditor has been made against the Corporate Debtor. iv) In support of the above application, the petitioner has annexed a copy of the Invoice/Demand notice in Form-3 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, hereinafter called the 'AAA Rules' as issued by its Legal Counsel on 26.7.2017. Further, the statement of account for the period 1.4.2012 to 31.3.2013 is annexed as Annexure-A striking a balance of Rs. 20,50,385/- which is shown as due and payable from the Debtor/respondent. A copy of the purchase order placed by the Corporate Debtor as well as invoice as raised by the petitioner/Creditor has also been annexed. A reply as sent by the Respondent, being the notice of dispute dated 07.7.2017 has also been filed.
(2.) The above matter was listed on 23.8.2017 and during the course of hearing, directions were given to the petitioner to comply with the provisions of Section 9(3)(c) of IBC, 2016. For this purpose, a week's time was also granted. In the meanwhile, from order dated 05.9.2017, it is evident that the respondent Company had duly entered its appearance through its Counsel and a reply has also been filed, to which, the petitioner has also submitted its rejoinder. Perusal of the reply shows that the following contentions are being put forward by negating the claim as well as in relation to the maintainability of the Company Petition: a) the respondent contends that in view of the pre-existence of a dispute, the petition, as such, is not maintainable. b) In this regard, it is pointed out that on 05.5.2017, a notice was sent to the respondent Company for its winding up in relation to the amount payable under the Purchase order dated 23.2.2011 and that the said winding up notice was also replied to wherein the payment of Rs. 20,50,385/- being the amount claimed in default herein had been vehemently disputed on the ground that the claim is raised frivolously without fulfilling the obligation on the part of the Creditor/petitioner, pursuant to the understanding between the parties. It is also pointed out that as early as 03.5.2013, an E-mail had been sent by the respondent Company along with a letter dated 07.01.2013 received from Rajasthan Renewable Energy Corporation Limited which had withheld 50% of the subsidy amount payable due to a faulty Inverter supplied by the petitioner. c) Despite the above communication sent to the applicant/petitioner, no efforts had been taken by the Creditor/petitioner to put the same in order which deprived the respondent Company from obtaining subsidy amount in full, due to which, the Respondent/Debtor is unable to clear the amount as claimed by the petitioner/applicant. d) On the above basis, it is claimed that there is a pre-existence of dispute even prior to the sending of notice U/s. 8 of IBC Code, 2016, being the notice of demand from the applicant/petitioner to the respondent Company. e) In addition to the above, by way of preliminary objections, for noncompliance with the procedural aspects on the part of the petitioner, it is pointed out that the notice of demand, as issued by the petitioner has defects as the same has been issued by an Advocate who has not been duly authorized to issue such a notice on behalf of the petitioner and in support of the contention, the respondent has relied upon the decision of the Hon'ble NCLAT rendered in Uttam Galva Steels Limited vs. DF Deustche Forfait AG & Anr. f) Further, it is also pointed out that the provisions of Section 9(3)(b) of IBC, 2016 has not been complied with as in terms of said Section the applicant was required to furnish an affidavit to the effect that there is no notice of dispute in relation to the unpaid operational debts by the Corporate Debtor and the same has not been furnished. g) It is also pointed out that the provisions of Section 9(3)(c) of IBC, 2016 in relation to furnishing a copy of the Certificate from the Banker/Financial Institution maintaining the account of Operational Creditor in relation to the non-payment of unpaid operational debts by the Corporate Debtor has also not been filed which also becomes fatal in view of the decision rendered by the Hon'ble NCLAT in Smart Timing Steel Limited Vs. National Steel Agro Industries Limited. h) In view of the non-compliance, despite sufficient opportunities having been granted to the petitioner vide order dated 23.8.2017, the application it is represented on the part of the respondent/Debtor is required to be rejected in terms of provisions of Section 9(5) of IBC, 2016. Another issue which has also been raised is in relation to the debt being barred by limitation as the amount which is claimed to be in default is said to be due even as per the statement of accounts of the petitioner since the year 2012-2013 and that the present petition has been filed only on 21.8.2017 (i.e.) after more than a period of 3 years. i) Finally, it is also contended by the respondent that the respondent Company is a profit making company employing approx. 200 employees along with other group Companies and is having a turnover of approximately US $ 500 Million and taking into consideration the same, the respondent Company is fully solvent and there is no question of insolvency as sought to be portrayed by the petitioner.
(3.) On the part of the petitioner, a rejoinder has been filed reiterating the contents of the petition and also stating that the applicant/petitioner has nothing to do with the Rajasthan Renewable Energy Corporation Limited nor for that matter in relation to the promised subsidy which is sought to be projected as ground for the denial of payment due to the petitioner.;