TMI Blog2019 (6) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... m time-to-time and there is a plausible dispute pre-exists between the parties - The provisions of section 9(5)(ii)(d) of the Code clearly mandates that the Adjudicating Authority shall reject the application when notice of dispute has been received by the applicant operational creditor. In the factual scenario it is reiterated that the claim of operational debt in question is not free from dispute. Records show that dispute was raised prior to issuance of notice under section 8 of the Code. The respondent has raised dispute with sufficient particulars to qualify as a dispute as defined under sub-section (6) of section 5 of the Code - thus, the application fails and therefore the same is rejected. - Company Petition No. (IB)-1643 (PB)/ 2018. - - - Dated:- 14-6-2019 - M. M. Kumar C.J. (Retd.) (President) And S. K. Mohapatra (Technical Member) For the Petitioner : Debarshi Dutta , Rajat Pradhan and Ms. Rashi Goswami For the Respondent : Ms. Neha Talwar and Prashant Mehta ORDER S. K. MOHAPATRA (TECHNICAL MEMBER). - 1. M/s. Sandvik Asia P. Ltd., claiming as the operational creditor has filed this application under section 9 of the Insolvency and Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised various objections against the claim of the applicant. It is submitted that the claims of the applicant are under dispute since long due to which the present petition is not maintainable. It is alleged that there has been several breaches and delays in the execution of the work orders by the applicant due to which the respondent has suffered substantial losses and damages. 10. It is also stated in the reply that the applicant had failed to complete the work within the stipulated construal schedule and also failed to fulfil its contractual obligations such as timely execution of the work, meeting bank guarantee requirements, trial operation, performance guarantee test, compliance of joint deed of undertaking executed between the parties, etc. It is alleged that disputes have been occasioned due to sole breaches committed by the applicant. 11. The respondent further contended that the applicant failed to carry out the work in accordance with the technical specifications and commercial condition as provided under the contract and to the full satisfaction of the respondent and the client (NTPC). 12. The respondent further asserted that upon failure on the part of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the 'existence' of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the Adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the 'dispute' is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the court does not need to be satisfied that the defence is likely to succeed. The court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 18. There is thus no dispute that this is not the forum to examine and adjudicate as to what extent the claim of the petitioner is admissible as due and recoverable. Neither the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project (2x660MW) : Legal Notices Sir, We are in receipt of your legal notice dated March 20, 2018 we are surprised to note the content of the legal notice where in you have demanded certain purported payment of ₹ 6,85,00,119 which are not payable by Indore in terms of the contract. The discrepancies/ anomalies the bill have already been informed to Mr. Sandvik Asai Pvt. Ltd. During the personal visit of Mr. Sandvik representative. It is per tinent to mention that the bills have not been raised as per the pro vision given in the contract. It is relevant mention that the principal amount itself is not payable hence the question of payment of pur ported interest does not even arise, the said legal notice has been issued with the mala fide intent and with an intent to harsh Indure. Further with respect to the amount of ₹ 3,29,50,000 as per terms of the contract clause No. (iv)-Appendix 1 we would request you to kindly go through the provision given in the contract wherein you will find that the conditions/obligations stipulated therein have not been fulfilled discharged by Mr. Sandvik Asia Pvt. Ltd. As such there is no basis whatsoever for claiming the amount in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion. 29. That apart in the reply as well as in the rejoinder both parties have alleged breach of contract and lapses on the part of each other, which itself prima facie shows that there was pre-existing dispute between the parties. Besides the letters of NTPC placed on record also show that there was hindrances and delay in execution of contract including disputes on payments. One of such letters/messages dated July 25, 2017 is placed below for ready reference. From : P Rajesh (mail to : parajesh@ntpc.co.in) Sent : July 25, 2017 17:16 To : sshan@jndure.com Cc : Induresolapur ; kishor Pandav : kksingh@seseinindure.com ; Manoj Prabhakar ; mssarma@indure.com ; npgupta ; Subhash Sab harwal ; Vijendra Kumar Meena ; Satyen Kumar Mishra ; Kishore Kumar Singh ; sshan ; Swarup Ghosh Subject : Re : Solapur CHP Pkg-Stacker-Reclaimer # 10A Com missioning and # 10 B takeover. D/Sir, This is for information that M/s. Sandvik has already withdrawn their manpower from NTPC Solapur site, at a juncture when the trail operation for declaring Unit # 1 commercial is on . This has been viewed very seriously at our end as any failure on the part of only available system of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al notice issued under section 8 was duly replied within the period prescribed by bringing to the notice of the operational creditor the existence of dispute. Besides the correspondences placed on record shows that the liability has been disputed from time-to-time and there is a plausible dispute pre-exists between the parties. 36. The provisions of section 9(5)(ii)(d) of the Code clearly mandates that the Adjudicating Authority shall reject the application when notice of dispute has been received by the applicant operational creditor. 37. In the line of aforesaid provisions of the Code, the hon'ble Supreme Court has also held that the moment there is existence of a dispute the operational creditor gets out of the clutches of the Code. 38. In the factual scenario it is reiterated that the claim of operational debt in question is not free from dispute. Records show that dispute was raised prior to issuance of notice under section 8 of the Code. The respondent has raised dispute with sufficient particulars to qualify as a dispute as defined under sub-section (6) of section 5 of the Code. 39. For the reasons stated above the application fails and therefore the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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