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2019 (4) TMI 1128 - Tri - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - grant of moratorium - appointment of Interim Resolution Professional - default in making repayment - retention money - amount not became due as on date - existence of debt or not? - Section 9 of Insolvency and Bankruptcy Code, 2016 - whether delay occurred on account of Corporate Debtor? - HELD THAT:- Admittedly, Corporate Debtor was given contract for completing the project for Majalgaon Lift Irrigation System on Turnkey Basis and equipment was transported to the project site. At that stage authorities of Government of Maharashtra issued order suspending the work. It is an unforeseen event. Parties to the Purchase order did not visualize such an event will take place. In the normal course if there is no suspension order, Operational Creditor can erect, commission and trial run the equipment. In case in the normal course, delay occurred on account of Corporate Debtor for completing the project on any ground other than the ground now referred to, then it can be said the retention money becomes due up to 20% and if not paid it amounts to default. The situation is otherwise. Without any fault from the side of Corporate Debtor concerned authorities of Government of Maharashtra issued order of suspension of the project work. The Corporate Debtor cannot be blamed for the suspension order passed by the authorities of Government of Maharashtra. The suspension order does not show that it was issued on account of failure on the part of Corporate Debtor to perform its part of the contract given to it by the Government of Maharashtra. The Operational Creditor becomes entitled to retention money of 25% or 20% as the case maybe only if it completes the terms of purchase order, especially erection, commissioning and trial run. This part of the contract was not completed. The amount becomes due only if Operational Creditor completes the remaining part of the Purchase Order. Till then, the amount does not become due. When the amount does not become due, then there is no question of default. Operational Creditor failed to establish that there is a debt due and payable and it was committed default. As far as IBC is concerned, the Operational Creditor to establish debt as well as default. When these two are not established, then petition cannot be admitted - petition dismissed - decided against petitioner.
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