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TMI Blog2020 (4) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... Bankruptcy Code, 2016 (for short, "the I and B Code") for initiation of "corporate insolvency resolution process" against "M/s. Prasad and Co. (Project Works) Ltd." (the corporate debtor) alleging the default on the part of the "corporate debtor" for repaying a sum of Rs. 2,97,79,977.24 as on December 10, 2016 along with interest with effect from May 25, 2018 till date of realization. The Adjudicating Authority (National Company Law Tribunal), Hyderabad Bench, Hyderabad by impugned order dated February 20, 2019 rejected the application with the following observations : "Findings 14. It is not in dispute 25 per cent. of the retention money to be paid after erection, commissioning and trial run. The rest of the purchase order was complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the corporate debtor. Admittedly, the corporate debtor was given contract for completing the project for Majalgaon Lift Irrigation Sys tem on turnkey basis and equipment was transported to the project site. At that stage authorities of the 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, the operational creditor can erect, commission and trial run the equipment. In case in the normal course, delay occurred on account of the corporate debtor for completing the project on any ground other than the ground now referred to, then it can be said the retention money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount does not become due, then there is no question of default. When there is no debt within the meaning of section 3(12) of the IBC, then there is no question of default. Thus, operational creditor failed to establish that there is a debt due and payable and it was committed default. As far as the IBC is concerned, the operational creditor to establish debt as well as default. When these two are not established then petition cannot be admitted. Thus, the petition is liable to be rejected." 2. Learned counsel appearing on behalf of the appellant submitted that the Adjudicating Authority cannot give a specific finding with regard to claim and counter-claim made by the parties. According to him, there is a "debt" and "default" and form 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 34,50,815.50. In terms of the said purchase order dated February 26, 2014 the payments were to be made in different instalments, as per the details given in the affidavit. However, it is not necessary to discuss all such details at this stage. As the question arises whether a "debt" is payable and there is a "dispute" and there is a "default" and if so, whether the application filed under section 9 of the "I and B Code" is barred by limitation. 6. The respondentâEUR""corporate debtor" has taken plea that in terms of the agreed payment 10 per cent. advance along with the purchase order were to be made. 65 per cent. against supply of equipment at the site after confirmation of third party inspection against LC was to be made wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w to realise the amount and not for the purpose of "corporate insolvency resolution process". 10. Apart from the aforesaid facts that we find that the agreement was reached between the appellant and a work of joint venture, i. e., "Prasad-Shreehari" but in the petition "M/s. Prasad and Co. (Project Works) Ltd., has been impleaded as the party-respondent and not the joint venture. 11. Enclosure to form 5 which has been relied upon by the appellant before the Adjudicating Authority to claim the dues contains one "purchase order" dated July 6, 2013 which has been sent by "Prasad-Shreehari (joint venture), extract of which mentioned below : 12. In view of the aforesaid fact, as we find that there is a disputed question the of fact relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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