# In the matter of Cape Infrastructure Private Ltd. TCP-3-(IB)-CB-2017

> NCLT judgment dated 2017-07-07. Citation: TCN-2017-NCLT-00754. M/s.Nupower Renewables Private Ltd. filed an application under Section 9 of the I&B Code, 2016…

- **Court:** NCLT
- **Order date:** 7 Jul 2017
- **Citation:** TCN-2017-NCLT-00754
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-chandigarh/cape-infrastructure-private-ltd-tcp-3-ib-cb-2017-678599e7

## Summary

### Background

M/s.Nupower Renewables Private Ltd. filed an application under Section 9 of the I&B Code, 2016 against M/s. Cape Infrastructure Private Ltd. for claiming Rs. 5,25,00,000/- along with interest at 18% per annum from September 18, 2013, until the date of realization. The petitioner engaged the Corporate Debtor for rendering services related to setting up and development of a 300 MW Windpower Project in Gujarat under a framework agreement dated April 19, 2011. The Corporate Debtor received Rs. 5,25,00,000/- as advance but did not perform the agreed services. The Corporate Debtor agreed to refund the sum within two to three years starting from January 2014, as per an agreement dated September 18, 2013. The Corporate Debtor failed to make the payment as promised, leading

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## Facts

M/s.Nupower Renewables Private Ltd. (the petitioner) engaged M/s. Cape Infrastructure Private Ltd. (the Corporate Debtor) to develop a 300 MW Windpower Project in Gujarat under an agreement dated April 19, 2011. The petitioner advanced Rs. 5,25,00,000/- to the Corporate Debtor. The Corporate Debtor failed to perform the agreed services. The Corporate Debtor agreed to refund the advance within two to three years starting January 2014, as per an agreement dated September 18, 2013. The Corporate Debtor failed to make the refund. The petitioner issued a legal notice on October 30, 2015. The Corporate Debtor replied on November 29, 2015, raising allegations. The petition was initially filed before the High Court of Madras and transferred to the NCLT Chennai bench on April

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## Issues and analysis

### Issue 1: Whether the petitioner falls within the definition of 'Operational Creditor' as provided under …

**Ratio:** An 'Operational Creditor' is a person to whom an operational debt is owed and includes

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**Reasoning:** The court reasoned that the petitioner had advanced money to the Corporate Debtor for

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**Interpretation:** The court interpreted the definition of 'Operational Creditor' and 'Operational

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**Application:** The court applied the definition of 'Operational Creditor' and 'Operational

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## Parties

- **Judges:** Ch. Mohd Sharief…; S. VIJAYARA…
- **Appellants:** M/s.Nupower…
- **Respondents:** M/s.Cape Infrastru…

## Timeline

- **2011-04-19 — Agreement…**: A framework agreement was signed between the petitioner and the Corporate Debtor for a…
- **2013-09-18 — Agreement to…**: The Corporate Debtor agreed to refund the advance payment within two to three years…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 9 — Application for initiation of corporate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-9)

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