TMI Blog2020 (10) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... l invoices. Coming to the second portion of the claim where some rental dues were claimed, the statement of account produced by the Corporate Debtor (Page No. 55 of the reply) reveals that there is no outstanding payable by the Corporate Debtor. When we go through the ledger account of the Corporate Debtor in the books of the Petitioner, it shows a balance of ₹ 3,26,389/- as receivable from the Corporate Debtor but the Invoice No. SP2/1900009 dated 03.04.2018 for ₹ 1,98,949/-, as claimed in the petition is not even reflecting in the statement of account, hence, the claim under this invoice cannot be accepted. As far as the other invoice no SP2/1900165 dated 16.04.2018 for ₹ 1,27,440/- is reflecting in the statement of account produced by the Petitioner (Page No. 50 of the Petition) but the same is not reflected in the statement of account of the Corporate Debtor (Page No. 55 of reply). In view of this, this claim also fails. It is established that there is a clear dispute relating to the quality of goods as provided u/s 5(6)(b) of the Code - Petition dismissed. - CP (IB) 3142/MB/2019 - - - Dated:- 2-7-2020 - Suchitra Kanuparthi, Member (J) And V. Nallase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GP4/1900487 15-May-18 1,26,260 22,789 1,49,049 8 GP4/1901073 23-Jun-18 2,54,880 41,102 2,95,982 9 GP4/1901915 30-Jul-18 2,41,900 34,595 2,76,495 10 GP4/1901915 17-Aug-18 1,26,260 18,866 1,45,126 11 GP4/1901936 18-Aug-18 1,26,260 18,804 1,45,064 12 GP4/1903890 27-Dec-18 2,54,880 17,597 2,72,477 Total 77,52,434 18,95,326 96,47,761 3. The second portion of the claim relates to the rental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Passenger hoists ₹ 60,000.00 iv) Air compressor ₹ 4,666.66 v) Aluminum Formwork ₹ 20,3,333.33 vi) Staff ₹ 7 Lacs-Payroll vii) Support Staff ₹ 4 Lacs: Bhupati viii) Workmen ₹ 18 Lac ix) Loss of revenue ₹ 1.50 Crores x) Loss of profit ₹ 30 lacs IV. The Petitioner failed to provide certain standard accessories in respect of three cranes supplied for the project-Godrej Central during 2015 and due to that the cranes were idle from 07.03.2016 to 20.06.2019 entailing a total rental charge of ₹ 1,50,000/- (dry lease) per crane for a period of 36 months for two cranes. V. There are various critical issues developed in wire rope winding at Gurgaon site which was a quality failure that created certain safety concerns etc. 6. The Corporate Debtor in the reply to the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,260 06-07-2018 1,26,260 216737 14-08-18 FULL AMOUNT PAID 15-05-18 1900487 1,26,260 21-04-2018 1,26,260 5436/250 21-04-18 FULL AMOUNT PAID 23-06-18 P4/1901073 2,54,880 05-05-2018 2,54,880 340881 20-06-18 FULL AMOUNT PAID 30-07-18 P4/1901609 2,41,900 19-07-2018 2,41,900 556830 24-07-18 FULL AMOUNT PAID 27-12-18 P4/1903890 2,54,880 10-12-2018 2,54,880 239589 24-12-18 FULL AMOUNT PAID 1,05,70,440 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was Asst. Manager Safety Capacite Infraproject Ltd. d. Email dated 16.11.2017 sent by the Petitioner to the Corporate Debtor: Subject: AC tower crane. Dear Mr. Katyal, This has reference to your trail email. Yes, there have been a couple of problems with the wire rope but please note that these problems are not of critical nature and we are using Usha Martin wire ropes which is the largest and the most proven quality and also the most expensive in the country. Usha Martin senior team was at our plant to analyse the problem which were unfortunately faced at your sites and they are going to come back with their detailed report. In the meanwhile, we have already organized to change the wire rope to ensure site functioning and proper safety at the site. Please be rest assured that we will leave no stone unturned to ensure proper safety and good working of our machines. Regards Sorabh Agarwal | Executive Director. e. Email dated 16.11.2017 sent by the Corporate Debtor to the Petitioner: Subject: Failure of Trolley rollers of ACE5040 crane at Kalpataru. Dear Sir, We are facing many failure/quality issues in the recently supplied towe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then and there and hence the issue regarding the quality of equipment does not arise at all. In view of this the Corporate Debtor cannot take shield of the quality of equipment to deny the liability. It is further submitted that the Corporate Debtor used the machinery exhaustively and abused the machinery to the core and despite the rough handling of the machine they have performed up to the expectation of the Corporate Debtor. The Petitioner also denied that there were frequent breakdowns and an employee has lost his leg due to machine. In one instance, the Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd., an insurance agent of the Corporate Debtor has mentioned in the claim request of the Corporate Debtor that an accident happened due to overturn from the lifting ladder. Hence the Petitioner cannot be punished for the negligence of the Corporate Debtor. The emails referred by the Corporate Debtor do not reflect any dispute. 11. This Bench has gone through the details of payment with the statement of account of the Corporate Debtor maintained with the Corporation Bank. It is found that the payment was made from the bank account of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , regarding the quality of wire ropes supplied by the petitioner as evident from the emails extracted above, which squarely falls under the ambit of section 5(6) of the Code which provides as below: 'dispute' includes a suit or arbitration proceedings relating to- a. The existence of the amount of debt; b. The quality of goods or services; or c. The breach of a representation or warranty; 14. It is beneficial to refer the judgement of the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. v/s. Kirusa Software (P) Limited- wherein in para No. 40, it was held as below: 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or 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 adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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