M/s. ABB India Limited vs M/s. Al Ameen Green Energy Private Limited

Per: SUCHARITHA R, MEMBER (JUDICIAL)

Under consideration is an Application that has been filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 ("hereinafter referred to as IBC, 2016") by M/s. ABB India Limited (hereinafter called as "Operational Creditor") for the purpose of initiating the Corporate Insolvency Resolution Process (CIRP) against M/s. Al Ameen Green Energy Pvt. Ltd. (hereinafter called as "Corporate Debtor")

Part - I, of the Application discloses the fact that the Applicant herein is a Public Limited Company with CIN: L32202KA1949PLC032923 along with its address for correspondence at 21st World Trade Centre, Brigade Gateway, No. 162/1, Dr. Rajkumar Road, Malleshwaram west, Bengaluru - 560 055. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Private Limited Company with CIN: U40300TN2013PTC093254 which was incorporated on 07.10.2013 and that its Authorized Share Capital and Paid up Capital are Rs.64,00,00,000/- and Rs.50,37,20,448/- respectively. The Registered Office of the Corporate Debtor as per the Application is that at New No. 132, Old No. 67, Ramasamy Street, Muthiapet, Chennai – 600 001.

Part – III of the Application discloses the fact that the Operational Creditor has not proposed the name of the Interim Resolution Professional and left it to the discretion of this Tribunal to appoint the same from the list furnished by the Insolvency and Bankruptcy Board of India. From Part-IV of the Application it is seen that, Rs. 6,53,36,026/- is the outstanding amount to be paid by the Corporate Debtor along with the date of default as 30.04.2019.

Part V of the Application shows that the applicant has attached the following to prove the existence of 'Operational debt';

The Learned Counsel for the Operational Creditor has averred that Al Ameen Green Energy Pvt. Ltd. was awarded with the work of complete EPC Package of 25MW Solar PV Project at Veeracholan Village, Virudhunagar. Subsequent to which the Corporate Debtor was awarded the “ Electrical Package” to the ABB India Ltd, who is the operational creditor herein, vide letter of Award (LOA) dated 29.07.2015. In terms of the above said LOA a tripartite agreement was executed between the parties and ENMAS GB Power Systems Pvt. Ltd., who is the nominated EPC contractor of the above said project. On account of the said tripartite agreement, a purchase order and work order bearing ref. no. EGP/EPC/15-16/P/RA/01I1/0065 dated 28.08.2015 and EGB/EPC/15-16/W/RA/01L1/0020 dated 31.08.2015 respectively. These orders along with the LOA are hereinafter termed as “Contract”. Accordingly, the operational creditor was performing its duties as per the contract, despite the fact there was monetary outstanding to the tune of Rs. 13.41 crore.

The Learned Counsel for the Operational Creditor has further averred that the operational creditor herein has served a Form – 3 Demand Notice dated 11.10.2017 demanding Rs. 22, 64,09,797/- as the amount due and payable. However, due to failure on the part of the Corporate Debtor with respect to repayment of the amount due and payable. The applicant herein has filed an application in CP No. 1423/IB/2018 before this Bench which was subsequently dismissed as withdrawn on 09.04.2019 on terms of settlement agreement dated 08.04.2019. Accordingly, the Corporate Debtor has agreed to pay a sum of Rs. 6,00,00,000/- in four tranches in the manner described in page No. 7 of the Application. It is further averred that, the Corporate Debtor has only made a meager amount of Rs. 20,00,000/- as on the date of filing this Application leaving behind Rs. 5,80,00,000/- as due and payable. Despite the repeated request of the Operational Creditor to honour the terms of the Settlement Agreement, the Corporate Debtor has failed to heed. Accordingly, it is evident that the Corporate Debtor has protracted the legal proceedings with an intention to evade and escape from the CIR proceedings.

The Learned Counsel for the Operational Creditor has averred that the operational creditor has served a Form -3 notice, dated 20.12.2019 for the second time, demanding a sum of Rs. 6,33,36,634/- which is due and payable. In response, the Corporate Debtor in their letter dated 22.01.2020 has pointed out the existence of a dispute between the parties. Accordingly, Corporate Debtor has referred to the Arbitration Clause present in the agreement. It is further averred by the operational creditor that the stand taken by the Corporate Debtor is not a bonofide one and has also highlighted the Memo of Compromise entered on account which the earlier application was dismissed as withdrawn. It is further alleged that the stand of dispute between the parties is taken as a counter blast to the Demand Notice dated, 20.12.2019.

The Learned Counsel for the Operational Creditor has filed an additional typed set of papers with the Order of the Hon'ble Madras High Court in O.P. No. 262 of 2021 which was filled by the Corporate Debtor herein praying for appointment of an Arbitrator to decide the dispute between the parties pending this present application. Accordingly the above mentioned O.A. no. 262 of 2021 was dismissed on the aspect that subsequent to the LoA, a Settlement Agreement dated 08.04.2019 was entered between the parties, in which the dispute was settled and a sum of Rs. 20 lakh was also paid by the Corporate Debtor and hence, the original contract cannot be invoked now.

The Corporate Debtor has failed to submit the copy of the Counter before this Tribunal; however a rejoinder to the Counter is present in the records. The Learned Counsel for the Operational Creditor has denied the averments in the counter on the aspect of preexisting dispute between the parties. Further on perusal of the daily orders it is found that the Counsel for the Corporate Debtor has sought time to respond to the rejoinder filed by the Operational Creditor. However, no such response was also made. The Adjudicating Authority has to come to the conclusion only based upon the documents which are filed by the parties. If the parties fail to file any documents, in spite of opportunity being granted, then the Tribunal is perforce required to arrive at a conclusion based on the documents available on record and cannot arrive at a conclusion on premises and suppositions.

Heard both the parties and perused the documents including the rejoinder on file. From the facts elucidated above, the debt that is allegedly due and payable by the Corporate Debtor is arising out of Settlement Agreement dated 08.04.2019. Admittedly, the dues arising out of the LoA was settled by way of the above mentioned Settlement Agreement dated 08.04.2019 in which a supersession clause is agreed upon, that any prior agreement or understanding is superseded with respect to the subject matter thereof.

Thus, the default, on the part of the Corporate Debtor is proved from the documents filed and the submissions made by the Learned Counsel for the Operational Creditor. Further, it is also pertinent to note that the default arising in the present Application was already brought up before this Tribunal, which was dismissed as withdrawn on account of the Settlement Agreement dated, 08.04.2019. Accordingly, the failure on account of the Corporate Debtor to pay the outstanding as acknowledged in the Settlement Agreement dated 04.08.2019 has vested the right upon the Operational Creditor to initiate the present application.

Thus, taking into consideration the facts and circumstances of the case as well as the position of Law, we are of the view that the Petition, as filed by the Operational Creditor, is required to be admitted under Section 9(5) of the IBC, 2016. Since the Operational Creditor has not named the Insolvency Resolution Professional, this Tribunal, based on the latest list furnished by Insolvency and Bankruptcy Board of India applicable for the period between July – December 2021 appoints Mr. S. Vaidyanathan with Reg. No. IBBI/IPA-002/IP-N00934/2019-2020/12978 (email id:- [email protected]) as the “Interim Resolution Professional” subject to the condition that no disciplinary proceedings are pending against such an Interim Resolution Professional named and disclosures as required under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 are made within a period of one week from the date of this order. The IRP appointed shall take in this regard such other and further steps as are required under the Statute, more specifically in terms of Section 15,17,18 of the Code and file his report within 20 days before this Bench. The powers of the Board of Directors of the Corporate Debtor shall stand superseded as a consequence of the initiation of the CIRP in relation to the Corporate Debtor in terms of the provisions of IBC, 2016.

As a consequence of the Application being admitted in terms of Section 9 (5) of the Code, the moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor:

However, during the pendency of the moratorium period in terms of Section 14(2) (2A) and 14(3) as extracted hereunder:

The duration of the period of moratorium shall be as provided in Section 14(4) of the Code and for ready reference reproduced as follows:

The Operational Creditor is directed to pay a sum of Rs.2,00,000/- (Rupees Two Lakh Only) to the Interim Resolution Professional upon the Interim Resolution Professional filing the necessary declaration form as required under the provisions of the Code to meet out the expenses to perform the functions assigned to her in accordance to Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

Based on the above terms, the Application stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. A copy of the Order shall be communicated to the Operational Creditor as well as to the Corporate Debtor above named by the Registry. In addition, a copy of the Order shall also be forwarded to I&BI for its records. Further, the Interim Resolution Professional above named who is figuring in the list of Resolution Professionals forwarded by I&BI be also furnished with copy of this Order forthwith by the Registry, who will also communicate the initiation of the CIRP in relation to the Corporate Debtor to the Registrar of Companies concerned.