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TMI Blog2021 (4) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 3. The averments made in the petition are as follows: 3.1 The petitioner/Operational Creditor, Messrs SEW & Prasad- Joint Venture is a partnership firm of two companies registered under the Companies Act, 1956, viz. (i) SEW Infrastructure Limited (formerly known as SEW Constructions Ltd.) and (ii) Prasad & Company (Project Works) Limited. The petitioner has its registered office as described in the cause title. 3.2 The respondent/Messrs Gati Infrastructure Private Ltd. (formerly known as Gati Infrastructure Limited) is a company incorporated under the Companies Act, 1956, having its registered office mentioned in the cause title. 3.3 It is averred that the parties have entered into "Agreement for execution of various Civil and Hydro Mechanical Works of 99 MW Chuzachen Hydro Electric Power Project, Sikkim" on 12.08.2006 (EXHIBIT P-6) (pages 38-110). The work was completed to the satisfaction of the Corporate Debtor and the project was commissioned on 11.03.2013. (EXHIBIT P-10) (page 114). However, disputes arose bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missing the claims of the Operational Creditor. MEMO DATED 20.10.2017 FILED BY THE OPERATIONAL CREDITOR: 4. The Operational Creditor has produced the following documents by: (i) Partnership deed dated 22.10.2005, (ii) GPA dated 01.08.2017, and (iii) Board Resolutions. 5. CA NO. 28 OF 2018 DATED 29.01.2018 FILED BY THE RESPONDENT: 5.1 The CA is filed praying that the facts stated in the CA be brought on record and the petition be dismissed. 5.2 It is averred that there are deficiencies in the work and there are pending works which are yet to be completed. Thus, there was pre-existing dispute between the parties. The respondent has relied on the following decisions: (i) Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, (2018) 1 Supreme Court Cases 353. It is held by the Hon'ble Apex Court that once there is dispute with respect to the claim amount, the Company Petition is liable to be dismissed. (ii) Innoventive Industries Ltd. Vs. ICICI Bank, (2018) 1 Supreme Court Cases 407. 5.3 It is submitted that since the Operational Creditor has refused to complete project works and to pay due amount, the Corporate Debtor had preferred Arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Petitioner could not produce Bank Certificate under section 9(3)(c) of the I&B Code, (iii) The petitioner could not produce any document showing admitted liability of the respondent. (iv) There are pre-existing disputes between the petitioner and the respondent and that a disputed debt cannot be entertained under the I&B Code. (v) The respondent had preferred Arbitration Application No. 110 of 2017 under section 11 on 18.09.2017 before the Hon'ble High Court at Hyderabad seeking appointment of Arbitrator, which is pending. Pending adjudication of such Arbitration Application the present petition is liable to be dismissed. (vi) The respondent is a solvent company and is having 135 employees in its project. Such employees and their families are dependent for livelihood on the respondent/company. (vii) Project of the respondent/company is sanctioned by 7 secured lenders and the company has investment from GE, a reputed investment company. 7. WRITTEN SUBMISSIONS DATED 27.09.2018 FILED BY THE RESPONDENT/CORPORATE DEBTOR. 7.1 It is submitted that since dispute arose between the parties, Settlement Agreement dated 14.12.2013 has been entered into between the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequence. (ii) The respondent is also not liable to pay amount of Rs. 1.95 crores towards "Motorised Door and restoration of land/dump yards" as the petitioner does not satisfy the requirements for payment of the said sum. There are proceedings initiated between the group of companies of the petitioner and the group of companies of the respondent involving multiple transactions between the parties and inter se disputes. 8. WRITTEN SUBMISSIONS DATED 23.10.2018 FILED BY THE PETITIONER/OPERATIONAL CREDITOR. 8.1 The petitioner/Operational Creditor has raised the following points: (i) Pursuant to "Agreement for execution of various Civil and Hydro Mechanical Works of 99 MW Chuzachen Hydro Electric Power Project, Sikkim" on 12.08.2006 (EXHIBIT P-6) (pages 38-110), the petitioner had completed the work to the satisfaction of the Corporate Debtor and the project was commissioned on 11.03.2013. (EXHIBIT P-10) (page 114). (ii) Certificate of Merit dated 24.09.2015 (EXHIBIT P-10, page 114) was issued by the Corporate Debtor. (iii) Certain issues cropped up between the parties have been sorted out by way of Settlement Agreement dated 14.12.2013 (Pages 31-36). Vide Schedule-1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (IB) No. 228/9/HDB/2017 against AJVPL. Since AJVPL is not honouring its commitments, the respondent is herein is equally liable under the law for the default amount of Rs. 23.98 crores. OBSERVATIONS: 9. Heard the Counsel for Operational Creditor and Counsel for Corporate Debtor through videoconference. 10. The Petitioner is Operational Creditor. The Petitioner filed the present petition under Section 9 of I&B Code, 2016. 11. It is the case of the Operational Creditor that the parties have entered into "Agreement for execution of various Civil and Hydro Mechanical Works of 99 MW Chuzachen Hydro Electric Power Project, Sikkim" on 12.08.2006 (EXHIBIT P-6) (pages 38-110). The work was completed to the satisfaction of the Corporate Debtor and the project was commissioned on 11.03.2013. (EXHIBIT P-10) (page 114). However, disputes arose between the parties over execution of work, cost overrun, payment of RA Bills, etc. Ultimately, Settlement Agreement (EXHIBIT P-4) (Pages 31-36) was signed by on 14.12.2013 between the parties along with others, viz. (i) M/s. Amrit Jal Ventures Pvt. Ltd. (AJVPL) as a promoter of Corporate Debtor, (ii) M/s. Mahendra Investment Advisors Pvt. Ltd., and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 23.98 crores. Hence the petitioner has preferred the present petition against GIPL on 21.09.2017. 15. On the other hand the respondent/Corporate Debtor contends that the Corporate Debtor has paid the amount of Rs. 10 crores to the petitioner towards full and final settlement under the agreement and discharged its obligations under the said Agreement. The Corporate Debtor has relied on Clause 2.7 of the Agreement and claims that having received the amounts under the Agreement the petitioner cannot, at this stage, raise any claim against the respondent. Clause 2.7 of the Agreement reads as under: "2.7 SPJV shall not demand or receive any payment, repayment, redemption or any distribution in respect, or on account, of any Settlement Amount payable to them under this AGREEMENT other than to the extent and in the manner set out in this AGREEMENT and SPJV irrevocably agree not to take any legal action or proceedings or make any claim against the GIPL in relation to the Settlement of claims in any circumstance, once the payment obligations of GIPL as set out in Clause 2.3 above has been satisfied in full." 16. As regards the claim of the petitioner for an amount of Rs. 2.03 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged the liability and had agreed to pay the balance amount vide its e-mail dated 21.01.2015 (page 112 of the petition. The Corporate Debtor had stated in the said e-mail that, "...we shall be making one crore payment e very month starting with this month end....." The said e-mail communication has not been controverted by the Corporate Debtor. Said e-mail was sent by and on behalf of the respondent from its company's e-mail ID. It is contended that the said e-mail would act as an acknowledgment of debt as held by the Hon'ble High Court of Karnataka in the case of SUDARSHAN CARGO PVT LTD Vs. M/s. TECHVAC ENGINEERING PVT LTD, ILR (2013) KAR 3941 (para 22). [paras 5 and 6] 21. It is further submitted that since AJVPL had failed to pay the claim amount on behalf of the respondent/Corporate Debtor, the petitioner proceeded against the principal debtor as liability primarily rests with the respondent in terms of EPC Contract dated 12.08.2006. Further, any covenant restricting institution of legal proceedings is hit by section 28 of the Contract Act, 1872 and is non-est in law. (para 8) 24. It is contended that AJVPL is merely a guarantor/agent, whose liability is co-extensiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 was filed on 10.08.2017 by the respondent, which was 45 days after issuance of Demand Notice. Reply dated 12.08.2017 was given thereto. The Hon'ble High Court at Hyderabad has dismissed the said Arbitration Application vide order dated 04.08.2020 (page 10 of the Written Submission) (para 18). ADDITIONAL WRITTEN SUBMISSIONS DATED 18.02.2021 FILED ON BEHALF OF THE OPERATIONAL CREDITOR. 27. The Operational Creditor has submitted that the Operational Creditor/SEW & Prasad-Joint Venture has withdrawn its claim in the CIRP of Amrit Jal Ventures Pvt. Ltd. initiated vide CP (IB) No. 192/7/HDB/2017, vide its letter dated 12.10.2020 (copy enclosed to the Additional Written Submissions). The Resolution Professional for Amrit Jal Ventures Pvt. Ltd. had acknowledged the same vide his e-mail 14.10.2020 (copy enclosed), by which the Resolution Professional had deleted the admitted claim of SEW & Prasad JV and issued amended table of claims received from Operational Creditors in Form-B. 28. It is therefore, submitted by the Operational Creditor that as on date there exists no claim of the Operational Creditor in CIRP of M/s. Amrit Jal Ventures Pvt. Ltd. and requests that the present peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade before the arbitrator of both the parties not only amounts to an admission but also that principle of estoppel operates on the respondent/company for deviating from their own stand. It is also important to note that this statement which is made voluntarily by the Director of the respondent/company amounts to novation of the contract and casts a liability on the part of the respondent to make the payment as claimed in the petition. In view of the same, taking into consideration the submissions made by the parties and the law involved in this case, we are of the considered view that the petitioners have made out their case on the aspect of limitation which has been triggered from the date of this e-mail, viz. 21.01.2015 till the date of filing, viz. 26.09.2017, which is within the period of three years. 31. Apart from that the said e-mail communication sent by the Director, who is an officer of the Board and whose statement binds the company with the required liability as claimed in the petition would answer Issue No. 2, which goes in favour of the petitioner. In view of the same the petition deserves to be admitted and the law as required to be complied with regard to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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