- (1.) The present Company Petition bearing C.P.(lB) .No. 115/09/HDB/2017 is filed by M/s.McNally Sayaji Engineering Limited u/s 9 of the Insolvency and Bankruptcy Code, 2016 R/W Rule 6 of the I&B (Application to Adjudicating Authority) Rules, 2016 by seeking to initiate Corporate Insolvency Resolution Process against M/s. Suryodaya Infra Projects (I) Private Limited under IBC, 2016.
(2.) The case is listed before this bench on various dates viz 25.07.2017, 27.07.2017, 08.09.2017, 14.09.2017, 19.09.2017, 27.09.2017, 17.10.2017, 10.11.2017 and 14.11.2017. The case has been adjourned on the above dates as the parties submit that the issue in question was going to be resolved between the parties themselves.
(3.) Brief facts of the case: a. The Applicant / Operational Creditor is a company engaged in manufacturing various kinds of crushing and screening machines and other equipments. In the course of its business, the Corporate Debtor / Respondent Company approached the Operational Creditor for supply of portable crushing plant machinery. Accordingly, the Corporate Debtor issued a Letter of Intent dated 07.08.2012 for a value of Rs.2,35,00,000/- and Purchase Order dated 09.08.2012 for a value of Rs.2,27,70,000/- plus applicable taxes. b. The Operational Creditor supplied in terms of the LOI / Purchase Order and Invoices (Bill Nos. 6010052 to 6010061 all dated 19.02.2013 and Bill No.6010063 dated 26.02.2013) were raised to the tune of Rs.2,86,51,799/-(Rupees Two Crore Eighty Six Lakh Fifty One Thousand Seven Hundred and Ninety Nine Only). c. The Corporate Debtor entered into a Loan cum Hypothecation Agreement with its Financer, L&T Finance Limited whereby the financer committed a payment of Rs.2,43,54,000/- (Rupees Two Crores Forty Three Lakhs Fifty Four Thousand Only) . The Financer released part payment of Rs. 1,71,91,050/- leaving a balance of d. Although supply was completed in February 2013, the commissioning of the plant could not be proceeded, as the Corporate Debtor failed to make arrangement. Despite Corporate Debtor's promise to pay the balance payment of Rs.83,20,750/- on or before 31.03.2015, the payment was not settled. The Corporate Debtor issued cheques on 23.04.2015, hence, the cheques issued were returned on presentation for Insufficient Funds / Stop Payment Instruction. e. In an email dated 24.08.2015, the Corporate Debtor explained about its financial constraints and stated that the amount would be paid in two months. However, the even as on date payments are not made. f. The Corporate Debtor's Statement of Account upto 30.09.2016 would indicate that the balance payable is Rs.74,62,949/-. In fact as per the payment terms contained in P.O. dated 09.08.2012, balance was to be paid along with 100% taxes before taxes. g. Despite the acknowledgement of dues on several dates by letters and emails, the Corporate Debtor has continuously failed to honour the commitment as it is evidently not in a position to pay the outstanding. In other words, the Corporate Debtor is commercially insolvent, under these circumstances, a statutory notice under the provisions of erstwhile Companies Act was issued on 30.09.2016 calling upon the Corporate Debtor to settle the outstanding sum amounting to Rs.74,62,949/- along with interest at 22% as per condition for delayed payment amounting to Rs.49,25,000/- as on 30.09.2016 for which no reply was received. h. The Corporate Debtor ought to pay Rs. 1,23,87,949/- as on September, 2016 for which settlement of account was served upon on the Corporate Debtor. The aforesaid sum as on March 2017 with further applicable interest amounted to Rs.1,60,59,350/-. The above payment as on 30.04.2017 amounts to Rs. 1,61,94,296/- which ought to be paid with further interest till date of payment / realisation. i. The Operational Creditor in view of the outstanding issued notice in Form-3 dated 04.04.2017 demanding payment under the Insolvency and Bankruptcy Code, 2016. The Corporate Debtor received the notice on 06.04.2017. However, the Corporate Debtor defaulted to make the payment and the Corporate Debtor also has not notified the existence of any dispute under the said code. In the circumstances, the Operational Creditor has filed the above application to initiate the Corporate Insolvency Resolution Process and failing that the liquidating the Corporate Debtor.;