Sri Bajrang Wind Park Developers vs INOX WIND INFRASTRUCTURE SERVICESLIMITED

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(NCLT) 1238

IN THE NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD COURT - 2 ITEM No.301 CP(IB)/212(AHM)2021 Order under Section 9 IBC IN THE MATTER OF:
Sri Bajrang Wind Park Developers ........Applicant Through Its authorized Balachandar V Nadar V/s ........Respondent Inox Wind Infrastructure Services Limited Order delivered on 13/12/2023 Coram:
Mrs. Chitra Hankare, Hon’ble Member(J)
Dr. Velamur G Venkata Chalapathy, Hon’ble Member(T)
ORDER
The case is fixed for pronouncement of order. The order is pronounced in open Court, vide separate sheet.
-Sd- -Sd-
DR. V. G. VENKATA CHALAPATHY CHITRA HANKARE MEMBER (TECHNICAL) MEMBER (JUDICIAL)
BEFORE THE ADJUDICATING AUTHORITY NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH COURT-2 C.P. (IB) No. 212 of 2021 [Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016].
In the matter of M/s. Sri Bajrang Wind Park Developers Through Its Authorized Representative Mr. Balachandar V. Nadar Having Registered Office:
Rameshwar Park-2, Street 4, Opp. Balmukund Complex, B/H Sterling Hospital, Rajkot - 360007 ….…Applicant/Operational Creditor VERSUS
1. M/S Inox Wind Infrastructure Services Limited Registered Office:
Survey No. 1837 & 1834 At MojeJetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No.17, Sector 16A, Noida - 201301 Through Its Directors:
2. Sh. Shanti Prashad Jain Registered Office:
Survey No. 1837 & 1834 At MojeJetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No.17, Sector 16A, Noida - 201301
3. Sh. Venkatanarayanan Sankaranarayanan Registered Office Survey No. 1837 & 1834 At MojeJetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No.17, Sector 16A, Noida - 201301
4. Sh. Manoj Shambhu Dixit Registered Office:
Survey No. 1837 & 1834 at MojeJetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No.17, Sector 16A, Noida - 201301
5. Sh. Vineet Valentine Davis Registered Office Survey No. 1837 & 1834 at MojeJetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No. 17, Sector 16A, Noida - 201301
6. Sh. Mukesh Rajnarayan Manglik Registered Office:
Survey No. 1837 & 1834 at MojeJetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No.17, Sector 16A, Noida - 201301
7. Sh. Govind Prakash Rathor Registered Office:
Survey No. 1837 & 1834 at Moje Jetalpur, Abs Towers, Second Floor, Old Padra Road, Vadodara - 390007 Corporate Office at:
Inox Towers, Plot No.17, Sector 16A, Noida – 201301 ….…Respondent Order pronounced on: 13.12.2023 Coram: Mrs. Chitra Hankare, Hon’ble Member(J)
Dr. Velamur G Venkata Chalapathy, Hon’ble Member(T)
Appearance:
For the Applicant : Mr. Aslam Ahmed, Advocate, Ms. Ankita Sharma, Advocate and Mr. Harilal S., Advocate For the Respondent : Mr. Navin Pahwa, Senior Advocate a/w Mr.
Pratik Thakkar, Advocate

Advocates:
For the Petitioner:Rohit Jain

JUDGMENT

1. This application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC for the sake of convenience) to initiate Corporate Insolvency Resolution Process against respondent.

Facts of the case:

2. The applicant submitted that the Operational Creditor is engaged in the business of setting up Wind Projects and Real Estate infrastructure support capability services. The Operational Debtor engaged Operational Creditor for works related to 50MW Wind Power Project at Sadala, Gujarat Project which was awarded to OD. The Operational Debtor issued various purchase work orders. The operational creditor raised various invoices from time to time regarding products supplied and works undertaken and completed installation work in time till May 2019. The operational debtor has not made complete payment but only made part payments towards discharging its outstanding liability. Despite issuing various emails, the outstanding amount against the invoices raised was to the tune of Rs. 25,72,70,275/- only along with interest at the rate of 24% per annum from the date of default. The operational debtor never raised any issue with respect to the work done. The operational debtor acknowledged joint measurement depicting completion of work but only sought time to make payment due. Statement of accounts maintained by the operational creditor shows receipt of only part payments from Corporate Debtor. Till date entire payment is not made.

3. The operational creditor issued demand notice dated 02.07.2019. By its reply dated 17.07.2019 operational debtor denied any debt being due. Thereafter maliciously he had issued notice dated 04.02.2020 claiming amount of Rs. 54,50,00,000/- from the operational creditor. He had also sought to invoke arbitration wrongly. The website of SJBNL shows completion of work. Thus, the operational creditor has carried out work to the satisfaction of operation debtor and discharged its duties. The operational debtor is attempting to create delay in making payments. There is no pre-existing dispute. The amount outstanding is Rs. 42,49,84,942/- including principal amount with interest at the rate of 24% per annum.

Reply of Operational Debtor:

4. The respondent submitted that the petition is defective and not maintainable. The operational creditor has no specific address of registered office and there is no evidence that the firm is in existence as different address is mentioned in Form no. 5 and in resolution. No partnership agreement is produced on record. The resolution filed by the applicant is specific for recovery and not for initiation of any CIRP. The present Forum is not a recovery forum and the demand notice has been issued without any authority. The person who issued the demand notice is neither partner of the firm nor authorised in the authority letter. He further stated that Form no. 5 is defective and the applicant has not complied with Sections 9(3)(c), 9(3)(d) and 9(3)(e) of the Code.

So also the applicant has not mentioned any date of default.

5. The Corporate Debtor further stated that the Corporate Debtor entered into the memorandum dated 07.01.2016 with the applicant for execution of infrastructure services and electrical works at Sadala, Surendranagar. Similarly, he had earlier entered into separate Memorandum of Understanding with Shri Maruti Wind Park (India) Private Limited for execution of contract for three different areas dated 29.01.2013, 18.05.2013 and 16.10.2013. The operational creditor also have other companies having same office premises and doing similar business. List of such 10 companies is given. The partners of the operational creditor and Shri Maruti Wind Park Developer are same and thus debt due to partners of Shri Maruti Wind Park Developers would be applicable towards partners of operational creditor. All these entities are common entities. The consolidated outstanding of all the firms of the operational debtor is claimed by the operational cre

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