TMI Blog2018 (12) TMI 1622X X X X Extracts X X X X X X X X Extracts X X X X ..... [2017 (9) TMI 1270 - SUPREME COURT OF INDIA] in relation to the pre-existence of dispute, this Tribunal is required to dismiss the petition taking into consideration Section 9(5)(ii)of IBC, 2016. Petition dismissed. - CP(IB) NO. 488/ND/2018 - - - Dated:- 17-12-2018 - MR R. VARADHARAJAN, JUDICIAL MEMBER AND DR. V. K. SUBBURAJ, TECHNICAL MEMBER For The Petitioner : Jatin Agarwal, Sameer Rastogi and Syed Sarfraraz Karim, Advocates For The Respondent : Ajay Garg and Ms. Kartikeya, Advocates ORDER 1. Under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC,2016) this petition has been moved by the petitioner in relation to a claim in a sum of ₹ 77,38,876.57/- payable out of a total billing of ₹ 2,11,89,531.55/- from the Corporate Debtor (CD) as an operational debt. It is averred in Part IV of the petition that debt arose due to supply of aluminum work at the project site of the CD being UIDAI, Headquarter Building, Bangla Saheb, Delhi, based on work order dated 6.5.2016 issued and the transactions which were done pursuant thereto between the period 10.10.2016 to 21.6.2017. During the transaction period as stated above, the payments it is averred bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above paragraph with the total contract cost of ₹ 75,91,41,063/- and that the work commenced in relation to the contract on 23.12.2015. Further, the CD was bound to complete the project in a time bound manner failing which levy of heavy penalties was attracted. In relation to the said project work order dated 6.5.2016 was issued to the OC for various aluminum work to be executed in relation to the project and that the total contract awarded to the OC was in a sum of ₹ 3,77,38,206/- which included fabrication, installation of aluminum and glass panels/components and the said contract awarded to the OC was on the basis of supply, installation, commissioning and testing as stipulated under clause 1.1 of the Work Order. While giving the contract, it was impressed upon the OC that time was the essence of the contract which is also mentioned in clause 1.2 of the Work Order. 4. However, in view of lack of expertise, the OC was not in a position to execute the contract awarded to it and failed miserably to fulfil its obligations and in fact abandoned the project midway without any notice and that all the personnel of the OC were also removed from the project site by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present petition as filed by OC is devoid of any cause of action as sought to be projected by the petitioner in the petition. 5. A rejoinder has also been filed by the petitioner/OC wherein it is contended that the counter claim which is sought to be projected by way of liquidated damages is based on cooked up facts for raising of dispute. It is also brought to the notice of this Tribunal in the rejoinder that based on the instructions of CD on 11.8.2017 the work was stopped on 22.8.2017 and that it is also evidenced that in view of the instruction for stoppage of work by the CD to the OC the work was stopped and that the materials were removed from the project site and further instructions in this regard were awaited from the CD. It is also brought to the notice of this Tribunal in the rejoinder, no formal termination letter of the Work Oder dated 6.5.2016 was issued by the CD prior to engaging another contractor, namely, M/s KSP Infrabuild on 15.5.2018 for the same work. It is also mentioned that without any dispute a sum of ₹ 1,33,67,127/- of the total contract amount was paid by the CD and in the circumstances dispute of ₹ 77,78,876.57/- is only an after thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. 12mm toughened Glass-89.93 sqm 7. 6mm cear toughened glass-132.60 sqm 8. Extra for openable - 93.93 sqm The accepted quantities of supplied items are as following: 1. Aluminium - 8001.0 kg. 2. DGU Glass -104.9 sqm 3. FR ACP - 348.30 sqm 4. Normal ACP-89.30 sqm You are requested to release payment on immediate basis. JATTN AGARWAL 78,G.B.MARG KULBHASKAR COMPLEX LUCKNOW-226018 Subject: Re: Aluminium Udyog - Confirmation of quantities. From: Parnika EIL UIDAI parnikaeil.16@gmail.com on Tue, 17 Oct. 2017 10:21:25 To: JATTN AGARAWL aluminiumudyog@rediffmail.com Cc:SANJAY JOSHI sanjaykjoshi72@gmail.com, Lalit Prakashlalitpr87@gmail.com Dear Sir, Please provide the details of due amount as per above quantities. Parnika has supplied many items and paid to your contractors. Show that amount also. In above quantities none of the work is completed, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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