B.S.V. Prakash Kumar, Member - (1.) It is a Company Petition filed under section 9 of Insolvency & Bankruptcy Code by the Petitioner against the Corporate Debtor on the footing that the Corporate Debtor having defaulted payment of Rs. 80,88,364.55/- as on 30.09.2017 against an Arbitral Award dated 15.09.2002 directing the Corporate Debtor to pay Rs. 10,70,834.50 along with interest @ 18% p.a. to the Petitioner from 12.12.1996 (the date of imposition of liquidated damages) till the date of Award i.e. 15.09.2002, hence this Company Petition for initiation of Corporate Insolvency Resolution Process under Insolvency & Bankruptcy Code.
(2.) The story of the Petitioner is that there was a company called Idcol Cement Ltd. subsidiary of IDC Orissa Ltd., both were fully owned by Government of Orissa. The Petitioner company formerly known as Crompton Greaves Ltd. was awarded two contracts for supply of equipment and for erection and commissioning of 132/11 KV Sub-station work by it, in pursuance of being successful bidder, formal contracts were signed in between the Petitioner and Idcol Ltd. for supply of equipment and erection for value of Rs. 3.91 crores and Rs. 36.37 lakhs. Those contracts were executed for a period of one year, thereafter extension was given up to 31.10.1993 for completion of the contracts. For there was a delay in completing the contractual work, as there was a liquidated damages clause for the delay in supply and erection, Idcol Ltd. realized those damages by invoking Bank Guarantees furnished by the Petitioner. On having Idcol Cements wrongfully levied liquidated damages by invoking Performance Bank Guarantee, a dispute arose between the parties, by virtue of which, the Petitioner invoked arbitration vide its letter dated 05.07.1997. Thereafter, this Petitioner sent an advocate notice to Idcol in the month of November 1997 for resolution of dispute by way of arbitration clause. When the Corporate Debtor did not come forward for appointment of an arbitrator in pursuance of the Arbitration Clause present in the contract, the Petitioner approached Hon'ble High Court of Orissa u/s. 11 of Arbitration and Conciliation Act, 1996 (hereafter referred as 'The Act'), in pursuance of which, the Hon'ble High Court on 07.03.1999 appointed Rtd. Justice Mr. J.M. Mohapatra as a Sole Arbitrator for adjudication of disputes. This Arbitrator on hearing from either side, passed an Award on 15.09.2002 directing Idcol Cement to pay Rs. 10,70,834.50/- along with interest @ 18.50 p.a. to the Applicant/Operational Creditor from 12.12.1996 till the date of Award i.e. 15.09.2002.
(3.) The Petitioner further says, that Idcol Cement Ltd. challenged the said Award before the Dist. Court Sambalpur u/s. 34 of 'The Act' vide Arbitration Petition 1/2002. While this litigation was in progress, the present Corporate Debtor i.e. ACC Cement acquired the entire equity stake of the Industrial Development Corporation of I Orissa Ltd. (IDCOL) and Idcol Cements Ltd. in pursuance of share purchase agreement executed in the month of December 2003 among IDCOL, Idcol Cements Ltd. and ACC (Corporate Debtor), whereby Idcol Cement Ltd. became subsidiary of ACC Cement Ltd. with a name called Bargarh Cement Ltd., in the year 2005, it was again merged into ACC Ltd. It is how the present Corporate Debtor has become liable to pay the outstanding dues subsisting in respect to the supply contract entered between the Petitioner and Idcol Cement Ltd.;