ORDER

1. The present application has been filed by the Operational Creditor- Sugana Ram Jat, Proprietor of M/s. Kamakhya Infra Power under section 8 and 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to initiate Corporate Insolvency Resolution Process in the matter of Shyama Power India Limited.

2. Brief facts as stated by the Petitioner are as follows:

2.1 The Petitioner/Operational Creditor is the sole Proprietor of Kamakhya Infra Power who is engaged in the business of civil works contracts therein work including benching, excavation and casting of foundations, earthing, tower erection and stringing of construction of tower foundation etc.

2.2 The Respondent/Corporate Debtor is a Private Limited Company incorporated under the provisions of the Companies Act, 1956, having its registered office at Silverpine, H/No. 75, Doragajan, Dimapur, Nagaland-797116. The Authorized share capital of the Corporate Debtor is Rs. 20,00,00,000/- and the paid-up share capital is Rs. 15,07,61,000/-. A copy of the Master Data Sheet of the Corporate Debtor as downloaded from the MCA Portal has been annexed with the Petition.

2.3 The Corporate Debtor through its authorized representative approached the operational creditor for carrying out the execution of civil work including the benching, excavation and casting of foundations, earthing, tower erection and stringing etc.

2.4 The CD placed work orders to the Operational Creditor time to time by way of telephonic communication/work orders issued in hard copy. The CD as per the work order is duly liable to pay the balance 10% payment which it had withheld as security deposit and was duty bound to release after successful charging, testing and commissioning of sub-station.

2.5 The last trench of payment received was for an amount of Rs. 20, 39,007/- on 24.09.2021 and thereafter, no payment has been received by the Operational Creditor from the contract awarder company services/goods was outstanding which was reflecting from the statement of the ledger account of the Operational Creditor which is a complete contravention of the payment terms agreed and accepted by the CD.

2.6 The CD booked, admitted and credited the said amount in their books of accounts maintained and TDS on the booked amount is already deducted being TDS thereon.

2.7 The Petitioner is registered under the provisions of the Micro, Small and Medium Enterprises Development Act, 2006. Pursuant to Section 16 MSME Act, CD is liable to pay compound interest as per the terms mentioned therein.

2.8 The CD vide email dated 25.10.2020 had confirmed for 4% increase of rate thereby the Operational Creditor has sent the additional increased differential amount raised bills dated 25.01.2023.

2.9 A Demand Notice Form-3 dated 22.02.2023 was issued by the Operational Creditor under the provisions of the IBC, 2016 thereby demanding payment of the said outstanding amount of Rs. 2,71,37,451/- within the period of 10 days from the date of receipt of the notice. Copy of the Demand Notice issued by CD and speed post receipt along with proof of delivery has been annexed with the petition.

2.10 The CD in response to the demand notice vide letter dated 21.03.2023 issued baseless grounds with regard to pre-existing disputes and suggested the OC to seek recourse to Civil Law instead of IBC, 2016 which apparently shows that the CD itself acknowledging the default made by them.

3. The Respondent has filed its Reply Affidavit, stating that:

A. There is a genuine pre-existing dispute between the parties

i. The Respondent issued work orders to the Applicant in between 2016 to 2018 for carrying out works for different transmission lines and substation in Manipur under the MSPCL and PGCIL pursuant to the government contract awarded to the Respondent (“Manipur Work Orders”).

ii. Thereafter, the Respondent issued work orders to the Applicant between 2018-2019 for carrying out works for