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TMI Blog2021 (1) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... m despite after receipt of Section 8 notice served upon the Corporate Debtor. 2. The case of the Operational Creditor is, the Corporate Debtor at the time of setting thermal power plant with a capacity of 330MW invited bids for transportation of Coal from Amrapali Mine to Banadag Railway Siding and loading of Coal into Indian Railways Wagon at Banadag Railway Siding for NTPC Barh II (2x660MW) through RCR mode wherein the Operational Creditor being accepted as the highest bidder, the Corporate Debtor vide Purchase Order 4000164568-064-1028 dated 13.04.2016 awarded the contract to the operational creditor on the terms and conditions contained in the above purchase order. 3. Pursuant to the same, an agreement 30.06.2016 was entered into between the Corporate Debtor and the Operational Creditor with a duration of contract period from 19.03.2016 to 18.03.2017 for a total sum of Rs. 211,95,00,000, later the contract was extended to the Operational Creditor up to 26.04.2018. As per the Purchase Order, the Operational Creditor is supposed to submit its bills on despatch of the rake as per the RR receipt. Upon receipt of the same; the Corporate Debtor is bound to release 90% payment withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18/019, 15.02.2018 44,84,253.00 BKB/17-18/019, 15.02.2018 1,58,00,873.00 BKB/17-18/020, 12.03.2018 37,07,504.00 BKB/17-18/023, 31.03.2018 42,83,873.00 BKB/17-18/023, 31.03.2018 1,05,33,915.00 BKB/17-18/024, 31.03.2018 37,10,624.00 BKB/18-19/002, 18.04.2018 2,78,33,508.00 BKB/18-19/003, 24.04.2018 1,17,19,449.00 TOTAL 11,21,44,047.40 10. As against this Petition, the Corporate Debtor submits that this Petition shall be dismissed in limine for suppression of documents seminal to decide the penalty and correspondence exchanged long prior to issuing section 8 notice reflecting that the corporate debtor from time to time reminding the operational creditor that it was continuously failing to supply the requisite coal to the siding as per minimum loading per day mentioned in the purchase order and also reminding that the corporate debtor would impose penalty for short supplies as mentioned in the Purchase Order based on which the operational creditor supplying coal and raising invoices, therefore the corporate debtor submits that the Operational Creditor should not have assumed that the corporate debtor defaulted making payment looking at the auto generated Retention Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation of authorised representative to complete the formalities for preparation of final bill so that the balance payment, if any payable could be processed, however, the Operational Creditor has not deputed any of its authorised representatives to complete the formalities with respect to preparation of the final bill. 17. The Corporate Debtor counsel submits that from the perusal of exchange of letters and the submissions thereupon, it is quite clear that the amount retained by the Corporate Debtor is largely on account of penalty against the short supplies, therefore the said amount cannot be released to the Operational Creditor. In view thereof, the counsel made it clear that the dispute is pre-existing between the parties since 2018 i.e., well in advance before issuance of the demand notice by the Petitioner. 18. On perusal of the submissions aforementioned, now the point for consideration is as follows: Whether or not dispute is pre-existing between the parties before issual of Section 8 notice dated 12.04.2020? To ascertain any dispute is in existence or not, we have to go through the various documents including exchange of letters between the parties. 19. Upon looking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicable rate of short supplied quantity". 23. The Corporate Debtor has mentioned in its letters that it had been repeatedly conveying its concerns on less transportation in various discussions and also through many correspondences, therefore it is felt that sufficient efforts have not been put in from the Operational Creditor side to effect augmentation in coal transportation. 24. In this backdrop, the Operational Creditor was asked to explain as to why penalty in terms of Clause 3.2 of the subject Purchase Order should not be imposed on the Operational Creditor. 25. Again on 24.03.2018, the Corporate Debtor wrote another letter to the Operational Creditor, which is as follows: Ref. No. 400/Barh/RCR/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging at about 0.6 rakes a day only. The details of trips received and rakes loaded at Banadag during last 10 days is as under : Date No. of trips recd. Rakes loaded 09/04/18 73 0 10/04/18 192 1 11/04/18 44 0 12/04/18. 220 1 13/04/18 291 0 14/04/18 180 1 15/04/18 257 2 16/04/18 223 0 17/04/18 223 0 18/04/18 288 1 It is observed that there has been no effort to augment the trips to the tune of requirement. The trips have been also affected by the coal transportation for Bongaigaon. It is again requested that coal transportation to Banadag may be increased to the tune of requirement. Thanking you, Yours faithfully, (N. Shekhar) AGM (FM-FT) 27. In this correspondence, the Corporate Debtor wrote another letter dated 16.04.2019 to the Operational Creditor with respect to processing of final bill mentioning that in the discussions held between the parties, deductions have beer: proposed for days when rake has been loaded for Bongaigaon but less than 2 rakes have been loaded for Barh. In the same letter, the Corporate Debtor called upon the Operational Creditor for deputation of representative to sign acceptance for final payment under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault is in existence, if default is in existence, it is to be seen that if any dispute is pre-existing before receipt of Section 8 notice by the Corporate Debtor. 34. In the backdrop of the factual scenario of this case, it is not the case of the Operational Creditor that it has not short supplied the coal and it is not also the case of it that penalty need not be paid in the event the Operational Creditor failed to supply coal to the Siding as mentioned in the Purchase Order 13.04.2016. 35. There are several letters from the Corporate Debtor that the Operational Creditor failed to supply 2.2 rakes of Coal per day and that the Corporate Debtor in the year 2018 itself wrote letter after letter that the Operational Creditor is liable to pay penalty for short supply, and the Corporate Debtor indeed called upon the Operational Creditor stating that the final bill would be reconciled provided the Operational Creditor authorized representative come to the Corporate Debtor for finalization of the bill because the Penalty liable to be paid by the Operational Creditor would be discounted from the unpaid invoice amount retained with the Corporate Debtor. 36. The Operational Creditor, for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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