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2020 (5) TMI 670 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - intention to recover alleged outstanding amount or to initiate the corporate insolvency resolution process (CIRP) against the corporate debtor or not - pre-existing dispute or not - time limitation - HELD THAT:- The respondent has entered into a turn-key project with IPCHL now known as Hiranmaye Energy Ltd., for a coal handling plant and this contract was entered with IPCHL associate company-Shristi Infrastructure Development Corp Ltd. Though the purchase orders in question, were placed by the respondent on the petitioner for supply of goods in question, those are meant and delivered to ultimate customer namely, IPCHL. Therefore, ultimately, all three parties to the issue viz : the petitioner, respondent and IPCHL, conducted three meetings on July 8, 2015, August 12, 2015 and November 24, 2015, whereby the petitioner agreed that IPCHL would release the balance amounts to it. Accordingly, a minutes of meeting (MoM) dated November 24, 2015, was duly executed by all three parties, wherein IPCHL has agreed to release outstanding payment subject to despatch of the materials mentioned therein. IPCHL has also entered into similar agreements with other vendors as well and has been making direct payments. It is also relevant to point out here that the petitioner got issued a legal notice as early as March 14, 2017, through their counsel M/s. Rajendra Lal Dua and Co. to the respondent. In response to the said legal notice, the respondent, got issued a reply dated April 6, 2017 through their counsel by inter alia, stating that the petitioner has agreed to receive the payments directly from IPCHL ; they have also paid ₹ 3,45,51,500 out of ₹ 4,71,83,890.61 ; and they have already authorised the petitioner to collect defaulted amount (last) ₹ 46,68,364 from IPCHL. Therefore, they have made it clear that there was no existing liability between them, after amendment of contract as agreed by it, and thus requested them to return the security cheques (PDC) given by them - Moreover, when the respondent has replied the petitioner as early as April 6, 2017, as stated supra, stating they are not liable to pay any amount to them, the petitioner have failed to initiate any action except a criminal petition stated to have been filed under section 138 of the NI Act, till they have issued the statutory demand notice dated June 27, 2019, under the provisions of the Code. Even as per the purchase orders/MoM in question, there is no mention about element of interest for defaulted amount. Contrary, interest is also claimed for ₹ 32,35,375 along with principal amount of default. The petitioner has not furnished any reasons for not taking appropriate legal action in pursuance to their earlier legal notice dated March 14, 2017. It is not the case of the petitioner that the respondent has received goods in question or received payments directly from IPCHL and used it. The contention of the petitioner that the MoM in question would not bind them is not at all tenable and it is liable to be rejected. And all the parties to MoM are bound by terms and conditions of it - So far as the issue of post- dated cheques by the respondent and their dishonour is concerned, it is for the parties to prosecute the criminal case, which is stated to be pending before the competent court, subject to merits of that case. The petitioner failed to make out even prima facie case about the defaulted amount to be payable by the respondent, apart from it, the petition is barred by laches and limitation - Petition dismissed.
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