TMI Blog2021 (1) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor, the Operational Creditor would be liable to pay the penalty remained due and payable by the Operational Creditor - the Operational Creditor counsel has filed rejoinder setting up a new case that since the Performance Bank Guarantee has not been retained, it is to be construed that no dues are outstanding against the Operational Creditor, therefore whatever defence taken up by the Corporate Debtor, the operational creditor says, could not be considered as dispute is in existence before receipt of Section 8 notice by the Corporate Debtor. On record it is evident that final bill has not been prepared, penalties not discounted, the operational creditor has not deputed its authorized representative for finalization of final bill, therefore due itself cannot be assumed unless final bill is prepared, therefore question of default will not arise, in any event, dispute is preexisting between the parties as on the date section 8 notice the corporate debtor received, therefore it is a clear case hit by pre-existing dispute. From the Operational Creditor side contention is dispute is frivolous, from the Corporate Debtor side contention is dispute is pre-existing - the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the Operational Creditor, the payment was done to some of the invoices, as to the invoices payment was not made, the said unpaid invoices have been referred in the calculation of default amount in the application filed by the Operational Creditor. 5. As to the dues payable towards unpaid invoices, the Operational Creditor sent emails dated 18.03.2019 and 18.04.2019 to which the Corporate Debtor vide its email dated 24.01.2020 admitted that as per the books of accounts of the Corporate Debtor, an amount of ₹ 7,25,91,090.40 is due to the Operational Creditor as on 31.12.2019 with a request to the Operational Creditor to confirm that it is showing in the books of the Operational Creditor. 6. To which the Operational Creditor replied through its email dated 24.01.2020 that the amount shown in the statement sent by the Corporate Debtor does not match with the books of the Corporate Debtor, therefore the Operational Creditor attached the statement as per its books and informed them that an amount of ₹ 11,21,44,047.40 is outstanding pending but not ₹ 7,25,91,090.40 as stated by the Corporate Debtor. 7. Thereafter, the Operational Creditor on 12.04.2020 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Statement supplied by the Finance Department of the Corporate Debtor disclosing the running bills till 31.12.2019, which is retained by the Corporate Debtor for adjustments during reconciliation against the short supplies and the penalties thereof. 11. In the email dated 24.01.2020, the Corporate Debtor has mentioned that the Operational Creditor cannot, simply upon receipt of Retention Statement, assume the amount in the Running Bills retained as an admission of default of making payment of ₹ 7,25,91,090.40 by the Corporate Debtor. 12. The Corporate Debtor counsel further submits that through the Purchase Order aforementioned, the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor. 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 at the general conditions of the contract, it is categorically mentioned if the contractor has failed to maintain the required progress in completing the work assigned to it, the Contractor shall pay compensation amount calculated as stipulated in Schedule A of the general terms and the said compensation may be adjusted or set off against any sum payable to the Contractor under this or any other contract with the Corporation (Corporate Debtor i.e., NTPC). 20. The contract that has come into existence between the Operational Creditor and the Corporate Debtor on issual of the Purchase Order dated 13.04.2016, which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor wrote another letter to the Operational Creditor, which is as follows: Ref. No. 400/Barh/RCR/2018 Date : 24.03.2018 The BKB Transport (P) Ltd. 2F, Vatika Apartment Line Tank Road Ranchi-834 001 Sub: Coal transportation for NTPC Barh from Amrapali, CCL through Banadag siding (PO no.4000164568-064-1028 Version-4 dated 28.03.2017). Dear Sir, The coal transportation to Banadag siding under the subject contract has been very low during last few days. The details of trips received at Banadag since 16th March is as under : Date No. of trips recd. Rakes loaded 16.03.2018 261 1 17.03.2018 186 0 18.03.2018 196 1 19.03.2018 136 0 20.03.2018 9 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subject purchase order. 28. Again on 30.04.2019, the Corporate Debtor wrote another letter reiterating the earlier request to depute the representative of the Operational Creditor for acceptance of the final bill payment so that it would enable closure of the contract and release of Performance Bank Guarantee submitted under the contract at the earliest. 29. All these correspondences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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 the reasons best known to it, did not send its authorized representative to make the bill final, unless bill is made final, in case anything is to be paid, the Corporate Debtor cannot be called as defaulted in paying the bill of the Operational Creditor. 37. In a sense, it could be said, that the default is not in existence because final bill has not been prep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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