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TMI Blog2020 (6) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the Application, are as follows: (1) M/S. Sodexo Food Solutions India Private Limited was incorporated under the Companies Act, 1956 with CIN No. U99999MH1994PTC082543 having registered office situated at 1st Floor, Gemstar Commercial Complex, Ramchandra Lane Extension, KanchpadaMalad (West) Mumbai-400 064. (2) M/S. Chemizol Additives Private limited (hereinafter referred to as 'Respondent/ Corporate Debtor') was incorporated on 13.09.2007, under the Companies Act, 1956 with CIN: U24240KA2007PTC043855 having its registered office at Plot No. 19 E & F, Bidadi Industrial Area, 2nd Phase, Sector 1 Talakuppa Village, BidadiHobli, Ramanagar District, Bangalore 562109. The Nominal/ Authorised Share Capital of the Company is Rs. 15,00,00,000/- (Rupees Fifteen Crores Only) divided into 1, 50,00,000/- equity shares of Rs. 10/- each and the issued subscribed and paid up capital is Rs. 12,37,31,570/- (Rupees Twelve Crores Thirty Seven Lakhs Thirty One Thousand Five Hundred and Seventy only) divided into 1,23,73, 157 equity shares of Rs. 10/- each. (3) It is stated that the Operational Creditor entered into an "Agreement for Providing Catering and Canteen Services" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Operational Creditor from March to June, 2018 (four months). The Corporate Debtor released an amount of Rs. 6,66,191/- towards invoice dated 09.04.2018 bearing No.SIKI1819000003, on 9th August, 2018. The Corporate Debtor confirming the same, sent an email to the Operational Creditor on 10th August, 2018 wherein the Corporate Debtor assured the Operational Creditor of settling maximum outstanding amount by 27th August, 2018. The Corporate Debtor , subsequently, replied by its email dated 28.08.2018, stating that they were awaiting funds from their parent Company, and further requested to clear the outstanding payment at the earliest. (6) The Operational Creditor, vide its letter dated 12th September, 2018 requested the Corporate Debtor to make payment of the outstanding dues of Rs. 25,93,350/- failing which the Operational Creditor would levy interest if the amount is not paid within 7 days. Despite duly receiving the reminder letters, the Corporate Debtor not only failed to reply to the said letters but also failed to pay the outstanding amount. Therefore, the Operational Creditor/ Petitioner through its Solicitors, issued an notice dated 18.12.2018 as per Form 3 of the 1 & B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess you make payments before month end of July. We do not have cash flow to run another month of service. We will have no other option to demobilise the project on 31st July 2018, hence kindly make arrangement to release our dues before 31st July. Kindly treat this mail as an official communication from our end on the subject. Thanking for you understanding and anticipating that your management will quickly take a decision to release the funds as requested, Regards. Vice President, Segment director (Industries)" Email dated 26.08.2018 sent by the Respondent states as follows: "On 26.07.2018, at 3.07 PM, MJ Adadia (mj.dadia@ianhechem.com wrote: Dear Mr. Debaprateem Paul, This has reference to the telephonic discussions we had yesterday evening on the subject. We sincerely regret the non release of payment to you for the last 4 months. We very well understand the hardship being faced by you due to delay in payment from our side. Based on our yesterday discussions today I have taken up the matter strongly with our parent company at Singapore and requested them to remit the required funds informed by them that they will release your outstanding payments. I ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Agreement dated 14.12.2015, "Clause 10" deals with respect to termination of the Agreement, which reads as under: 10. Terms and Termination: 10.1 Terms : This agreement shall take effect and become binding upon the parties on the Effective Date of this agreement and shall remain in full force for a period of one (1) year or until the earlier termination or notice by either party to other party pursuant to Clause 10.2.3, that it is terminating this Agreement. 10.2 Termination: 10.2.1 Notwithstanding anything contained in this Agreement, and without prejudice to its other rights in law or equity and without any liability and judicial intervention, this Agreement may be terminated by the party not in default (the Non-Defaulting party) by giving a thirty (30) days' written notice to the party in default (the defaulting party) if any of the following events (hereinafter referred to as a n "Event of default") occurs: a. Either party commits a breach if this Agreement and such breach, if capable of remedy, is not remedied by the Defaulting party within the aforesaid thirty (30) days notice period b. Any change in control of either party. For the purpose of this su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding anything to the contrary in this Agreement, neither party shall be liable by reason of failure or delay in the performance of its duties and obligations under this Agreement if such failure or delay is caused by acts of God, war, riot, fire civil commotion, strikes, lock-outs, embargoes, any orders of governmental, quasi-governmental, or local authorities or any other similar cause beyond its control and without its fault or negligence. 8. As asserted by the Learned Counsel, the outstanding amount in question is primafacia found to be due from the Respondent. However, it is relevant to point out that the original Agreement dated 14.12.2015 was effective for a period of one year from 04.01.2016. However, the main agreement was amended vide addendum dated 13.12.2016 by extending the terms of the agreement for the additional period of one year i.e. till 30.11.2017. Again it was extended by addendum dated 28.08.2017 extending till 30.06.2018. However, the Invoices against the claim made are dated 11.05.2018, 08.06.2018, 10.07.2018 and 02.08.2018. The period of invoice covers the period from April, 2018 to July, 2018, whereas the terms of Agreement was last extended till 30.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther remedies available except the provisions of the code by issuing demand notice. The mere acceptance of the debt in question by the Respondent would not automatically entitle the Petitioner to invoke the provisions of the Code, unless the debt and default is undisputed and proved it to the satisfaction of the Adjudicating Authority. As per the copy of Annual Returns for the Financial year 2017-18, filed by the Petitioner in respect of the Respondent Company, its turnover and net worth are Rs. 103,322,162 and Rs. 1,325,365,853/ respectively. Therefore, the Respondent Company prima facie appears to be solvent Company so as to resolve the issue of outstanding amount in question. The NCLT is conferred power, even to refer the matter pending before it, to Mediation and Conciliation. U/ s 442 of the Companies Act, 2013. The Adjudicating Authority, being NCLT, U/ s 60(1) of the Code, can suo motto refer the matter to either Mediation and Conciliation or to Arbitration to settle the dispute. Since, this already Arbitration clause is available in the Agreement in question, the Petitioner can be permitted to invoke Arbitration clause in respect of the issue in question. 11. For the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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