JUDGMENT :

J. B. PARDIWALA, J.

For the convenience of exposition, this judgment is divided into the following parts: -

INDEX

1. This appeal arises from the judgment and order dated 01.02.2021 passed by the National Company Law Appellate Tribunal at New Delhi (“NCLAT”) in the Company Appeal (AT) (Insolvency) No. 188 of 2020, preferred by the appellant herein against the admission of the insolvency application filed by the respondent herein under Section 9 of the Insolvency and Bankruptcy Code, 2016 (“IBC”), by which the NCLAT affirmed the order of the National Company Law Tribunal, Amravati Bench (“NCLT”) admitting the Section 9 application and initiating insolvency proceedings against the appellant herein.

A. FACTUAL MATRIX

2. The appellant herein (the corporate debtor) had invited an International Competitive Bid by advertisement dated 13.12.2010, for setting up a 225 MW gas based combined cycle Power Station at Bikkavolu, East Godavari District, Andhra Pradesh.

3. The respondent herein (the original petitioner before the NCLT), i.e., the operational creditor, was awarded the contract for execution of the aforesaid project as it submitted the lowest bid. The appellant issued the Letter of Award dated 24.12.2010 (the “LOA”) to the respondent for an amount of Rs. 827 crore. The parties subsequently entered into a contract for Engineering Procurement and Construction (“EPC agreement” / “EPC contract”) dated 09.02.2011. It was decided amongst the parties that the EPC contract was supposed to be completed in 14 months. It was mutually agreed between the parties that any disputes arising out of the EPC Agreement shall be referred to arbitration.

4. The EPC agreement enumerated several obligations and conditions for payment. The terms of payment in the EPC agreement signed between the parties is reproduced hereinbelow:

“Appendix – B

TERMS OF PAYMENT

SUPPLY OF EQUIPMENT