TMI Blog2018 (12) TMI 1700X X X X Extracts X X X X X X X X Extracts X X X X ..... al Member (Judicial) For The Petitioner (s) : Mr. Shyam Kapadia, Counsel a/w, Murtaza Kachwala, a/w. And L. Sachdev, i/b. HSA Advocates For The Respondent (s) : 1 1s. Yogi loshi, a/w. And Prakhar Maheshwari, i/b. Khaitan Co. ORDER Per M.K. Shrawat, Member (Judicial). 1. The Petitioner Mr. Battula Anjaneyulu is the Proprietor of M/s. B. Anjaneyulu and in the capacity of 'Operational Creditor' submitted this Petition on 03.08.2017 in respect of an Operational Debt of ₹ 14,62,18,995/- outstanding against the alleged 'Operational Debtor' M/s. DBM Geotechnics Constructions Pvt. Ltd. 2. The Operational Creditor has stated that the Corporate Debtor and the Operational Creditor executed various work orders for carrying out different kinds of work such as marine piling, labour supply, anchor-wall chipping, cage fabrication at various sites. There were 7 Work Orders, as claimed by the Operational Creditor entrusted by the Debtor Company as follows:- a. Job No. 2287 at Dighi Port, Berth 1 and 2 ₹ 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted was namely Fabrication, Shuttering, Piling work, Civil work, Reinforcement work and connected Labour Charges. In respect of each job assigned, the Petitioner has given the date of default falling within the period of October, 2014 to April, 2015. Documents annexed are voluminous such as Invoices, copy of Work Orders, R.A. Bills, Details of part-payment received, copies of several E-mails exchanged between the parties, financial statements and Affidavit as per the requirement of the Insolvency Code. Copy of Work Orders issued on several dates starting from December, 2008 to September, 2013 raised by the DBM Geotechnics (Respondent) issued for execution and served upon M/s. B. Anjaneyulu (Proprietor/Petitioner). 2.4 Attention was drawn on a Letter dated 10.05.2017 written by the Petitioner and addressed to the Debtor for demanding unpaid Debt amount by giving particulars of Operational Debt. Correspondence in this regard is also on record. Also placed on record Company Master Data as per the Ministry of Corporate Affairs to establish that charge was created on several dates, however, the Company was categorized as Active . OBJECTIONS OF CORP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation the impugned Insolvency Proceedings were initiated, however, it was settled with the said Creditor as soon as it had come to the knowledge of the Debtor Company. 3.4 To demonstrate the existence of dispute it is pleaded that the Respondent is a Company based at Mumbai which undertakes specialized time bound engineering projects as a Contractor. A contract was accepted to carry out, inter alia,the Piling Work and the related Civil Works for certain Port related Tender Contracts. It is submitted that the Respondent outsourced the said work to the Petitioner (Sub-Contractor) who is an expert in the field. The Respondent was only required to inspect the required sites, mobilize workers and commence the Piling and thereafter complete the Civil work. It is alleged that the Petitioner wilfully delayed and deployed inexperienced and untrained workers which resulted in a situation where the Port Authorities (i.e. Tenderers) terminated the Contract awarded to the Respondent, invoked the Respondent's Performance Bank Guarantees, Earnest Money Deposits and imposed the Contract related Liquidated Damages on the Respondent. It is further argued that the Respondent was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly pleaded that since the Petition on Form No.5 was filed after the lapse of 3 years and the date of filing is 03.08.2017, therefore, under the provisions of Section 238A of the Code, limitation is applicable on the current facts of this case. SUBMISSIONS/REJOINDER BY THE PETITIONER 4. On the issue of Limitation , it is submitted that the Insolvency Code came into effect from 01st December, 2016, therefore, right to file a Petition accrued from that day. For the legal proposition that the period of Limitation is to be counted from the date of the introduction of the Code, reliance is placed on the decision of Black Pearls Hotels (P.) Ltd. v. Planet M Retail Ltd. [Company Appeal (AT) (Insolvency) No. 91 of 2017] wherein it was held that the right had accrued from 01st December, 2016 and if the Petition is filed within three years then cannot be held to be 'barred by limitation'. Another case law in support relied upon is Brijesh Kumar Agarwal v. Punjab National Bank Anr [Company Appeal (AT) (Insolvency) No. 312 of 2018].. 4.1 On the issue of dispute in existence it is pleaded that the Debtor Company had admitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same lines, several other termination notices terminating the Contract are on record as under:- 1. Letter bearing Reference No. CN/WK/1531/30 dated 17.03.2016 issued by the Kandla Port Trust to the Respondent. 2. Termination Notice bearing Reference No. GPL/HO/2015-16/108 dated 13.08.2015 issued by the Gopalpur Ports Limited against the Respondent. 3. Termination Notice bearing Reference No. E P/S; IRPM/PLG : GEN dated 28.04.2016 issued by Bharat Petroleum Corporation Limited against the Respondent. 5.3 In respect of Job No. 2851, New Mangalore Port Trust (NMPT), it is informed that the Work Order was issued on 01.07.2011 which was required to be completed within 15 months. The Petitioner failed to complete the contract for more than 3 years. Upto 25.02.2013, only a part of the work was completed. During this period the contract of Job Work was amended time-to-time to facilitate the Petitioner but he had failed to complete the task. On account of recurring of delays, the Piling work got delayed due to which liquidated damages of ₹ 1.37 Crores was imposed. 5.4 In respect of Job No. 3065 of We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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