# In the matter of Overseas Infrastructure Alliance (India) Pvt. Ltd. Vs. Kay Bouvet Engineering Ltd. CA (AT) No. 582-2018

> NCLAT judgment dated 2018-12-21. Citation: TCN-2018-NCLAT-00002. This case involves an appeal against an order dated 26th July, 2018, passed by the…

- **Court:** NCLAT
- **Order date:** 21 Dec 2018
- **Citation:** TCN-2018-NCLAT-00002
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/overseas-infrastructure-alliance-india-pvt-ltd-vs-kay-bouvet-engineering-ltd-ca-3b341184

## Summary

### Background

This case involves an appeal against an order dated 26th July, 2018, passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, which dismissed a petition filed by Overseas Infrastructure Alliance (India) Pvt. Ltd. (Appellant) under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('I&B Code'). The Appellant claimed to be an 'Operational Creditor' against Kay Bouvet Engineering Ltd. (Respondent). The Adjudicating Authority dismissed the petition on the ground that there was an existing dispute between the parties, as the Appellant was contesting a specific performance civil suit on one hand and pressing for the commencement of insolvency proceedings on the other, both concerning the same amount.

## Facts

Overseas Infrastructure Alliance (India) Pvt. Ltd. (Appellant) filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, against Kay Bouvet Engineering Ltd. (Respondent), claiming to be an Operational Creditor. The Appellant was awarded an EPC Contract by Mashkour Sugar Mills, Sudan, for commissioning a sugar plant. The project was to be financed by EXIM Bank. The Respondent was selected as a sub-contractor. A Tripartite Agreement was executed between Mashkour, the Appellant, and the Respondent on December 18, 2010. The Appellant paid an advance of US$.10.62 million to the Respondent. Mashkour terminated the contract with the Appellant on June 15, 2017. The Appellant filed a suit in the Bombay High Court seeking certain reliefs. The Adjudicating

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## Issues and analysis

### Issue 1: Whether the transaction in question is an …

**Ratio:** An 'operational debt' means a claim in respect of the provision of goods or services,

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**Reasoning:** The court reasoned that the Tripartite Agreement provided for the rendering of services

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**Interpretation:** The court interpreted the definition of 'operational debt' broadly to include

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**Application:** The court applied the definition of 'operational debt' to the facts of the

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## Parties

- **Judges:** S.J. Mukhop…; Bansi Lal…
- **Appellants:** Overseas Infrastru…
- **Respondents:** Kay Bouvet…
- **Advocates:** Amir Ars…; Ajay K.…; +1 more

## Timeline

- **2010-12-18 — Tripartite Ag…**: A Tripartite Agreement was executed between…
- **2017-06-15 — Contract Term…**: Mashkour terminated the EPC…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 3(11) — Definitions](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-3)

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