9911796707
TMI Blog2020 (4) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ity) Rules, 2016 (hereinafter referred to as "AAA Rules") by the Applicant viz., M/s. Kevin Process Technologies Private Limited (hereinafter referred to as "Operational Creditor") against the Respondent viz., M/s. Swiss Garnier Genexiaa Sciences Private Limited, (hereinafter referred to as "Corporate Debtor") The Operational Creditor seeks to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional. 2. Part-I of the Application sets out about the Operational Creditor from which, it is evident that the Operational Creditor is a Private Limited Company with CIN:U51909GJ1995PTC026417. Part-II of the Application gives all the particulars of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hear Mixer Granulator, Starch Paste Kettle, Fluid Bed System, Multi Mill, Double Cone Blender to be set up in their Pharmaceutical Formulation Processing Unit. The Operational Creditor had sold the said machineries to the Corporate Debtor more particularly set out in the invoice dated 01-12-2016 amounting to Rs. 75,33,338/-. The Corporate Debtor had made part payment to the tune of Rs. 47,90,153/-, subsequent to that the Corporate Debtor has failed to make the payment of the entire dues. The Operational Creditor has not filed the Purchase Order No. SGG/1516/POS/CGO/00031 dated 23-1-2016. 6. The Applicant has submitted that the Corporate Debtor had, by e-mail dated 05-11-2018 acknowledged the said debt and informed that it had encountered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor it is stated that Parts IV and V of the Petition contains the particulars of the disputed and alleged Operational Debt, which the Corporate Debtor has stated that it is not an Operational Debt and the Petitioner is not an Operational Creditor. Therefore, they deny the contents in Parts IV and V stating that the Petition is not maintainable. 12. The Corporate Debtor has further submitted that they had issued a Purchase Order No. SGG/1516/POS/CGO/00031 dated 23-1-2016 on the Operational Creditor towards supply, installations and commissioning of equipments such as Vibro Shifter, High Shear Mixer Granulator, Starch Paste Kettle, Fluid Bed System, Multi Mill, Double Cone Blender to be installed and commissioned in the pharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor, which also evident from the proforma invoice dated 27-7-2016 and 5-9-2016 which are apparently after the dates prescribed under the Purchase Order condition, copy of the Proforma Invoice is marked as Annexure-I in the Counter. 15. The Respondent further alleges that the installation and commissioning of equipment has not been done by the Operational Creditor till date inspite of several requests made by the Corporate Debtor in person and over telephone. It is further alleged that the Operational Creditor has suppressed the fact that the installation and commissioning has not been done in their petition; as a result of non-fulfilment of the contractual obligation by the Operational Creditor, there is no use of machinery pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part in getting the equipments ready to be supplied. 19. As per the Purchase Order terms 60% of the payment is to be effected against Factory Acceptance Test (FAT), however, neither the Operational Creditor has communicated their readiness for FAT nor the Corporate Debtor has pursued with the Operational Creditor for completion of such test, so as to satisfy themselves regarding the suitability of the equipment for the manufacturing operations envisaged to be carried out. It is observed that from either side there is a failure to fulfil the contractual conditions contained in the Purchase Order No. SGG/1516/POS/CGO/00031 dated 23-1-2016. 20. In addition, there is a delay from the side of the Operational Creditor with respect to payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligations so as to establish their claim for operational debt. In addition, the Operational Creditor has not completed the process of erection and commissioning so as to make them eligible to claim the operational debt.
22. In view of the facts mentioned supra, that there is a deviation with respect to the contractual obligations regarding completion of Factory Acceptance Test from the side of both the parties which disturbs the existence per-se of the operational debt leading to a pre-existence of dispute, this Petition stands dismissed, no order as to costs. However this order of dismissal will not curtail the rights of the respective parties to proceed against each other before the appropriate forum. X X X X Extracts X X X X X X X X Extracts X X X X
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