TMI Blog2021 (4) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... and CA No. 28 of 2018 in CP (IB) No. 227/9/HDB/2017 - - - Dated:- 26-4-2021 - Bhaskara Pantula Mohan and Veera Brahma Rao Arekapudi, JJ. For Appellant: Vedula Venkataramana, Senior Counsel, Challa Gunaranjan and M. Sridhar, Advocates For Respondents: Sree Ram and P. Vikram, Advocates ORDER Bhaskara Pantula Mohan, J. AVERMENTS 1. This petition is filed by Messrs SEW Prasad- Joint Venture, Operational Creditor, claiming that the Corporate Debtor had committed default of an amount of ₹ 31,40,37,776/- (including interest) as on 03.08.2017. Multiple defaults occurred in repayment of instalments. Default in repayment of last instalment occurred on 01.02.2015. 2. Hence this petition is filed under section 9 of Insolvency and Bankruptcy Code, 2016, read with Rule 6 of Insolvency Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the petition, initiation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement. The promoter/AJVPL could only pay ₹ 4,38,62,120/- to the petitioner and failed to make the balance amount. Calculation Sheet showing payments made and to be made by the promoter/AJVPL with interest is at EXHIBIT P-5. Total amount payable by the promoter/AJVPL to the petitioner as on 03.08.2017 is ₹ 29,45,37,776/-. 3.7 Details of the amount of ₹ 2.03 crores withheld by the Corporate Debtor are as under: The petitioner has requested the Corporate Debtor to release the said amount of ₹ 1,95,00,000/- vide letter dated 23.05.2017 (EXHIBIT P-11) (page 115). However, the amount is not paid. Thus, the following amount has become operational debt as defined under section 5(21) of the I B Code, 2016 and the Corporate Debtor is liable to pay the same. It is averred that Demand Notice in Form-3 dated 03.08.2017 (EXHIBIT P-1) (PAGES 19-21) has been issued to the Corporate Debtor. The Corporate Debtor has given reply dated 12.08.2017 (EXHIBIT P-2) dismissing 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) Partnershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Clause 2.7 of Settlement Agreement dated 14.12.2013, provides that once payment obligations of GIPL as set out in Clause 2.3 are satisfied in full, the petitioner shall not demand or receive any payment in respect of any Settlement Amount payable to them under this Agreement. Action of the respondent in raising the present claim is in violation of the said Settlement Agreement. Besides, the petitioner had committed various breaches in performing its obligations. There are several pending works at the project site. The petitioner failed to respond to repeated requests from the respondent. The respondent had preferred Arbitration Application No. 110 of 2017 under section 11 of the Arbitration and Conciliation Act, 1997 before the Hon'ble High Court at Hyderabad seeking appointment of Arbitrator, which is pending, (paras 5-7) 6.3 The respondent contends that the present petition is not maintainable on the following grounds: (i) There is no admitted debt due to the petitioner payable by the respondent. (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 liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of INNOVENTIVE INDUSTRIES LTD Vs. ICICI BANK AND OTHERS, A.I.R. 2017 SC 4084, and in view of pre-existing disputes the present petition is not maintainable. 7.3 As regards the contention of the petitioner that the respondent undertook liability of paying balance amount vide its e-mail dated 21.01.2015, the respondent submits that the said communication dated 21.01.2015 was prior to MoU dated 20.05.2016 (ANNEXURE-4, page 17 of the Counter). The MoU is in supersession of the e-mail. The petitioner cannot take benefit of correspondence between the parties occasioned prior to MoU. It is further submitted that letter dated 22.03.2015 (ANNEUXRE-3, page 16 of the Counter) addressed by the petitioner to the respondent also evidences the same. 7.4 In view of the above submissions the respondent/Corporate Debtor contends that, (i) In view of settlement amount of ₹ 10 crores having been paid to the petitioner, the respondent is not liable to pay any amount. E-mail dated 21.01.2015, which is prior to MoU dated 20.05.2016, is of no consequence. (ii) The respondent is also not liable to pay amount of ₹ 1.95 crores towards Motorised Door and restoration of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready transferred to its promoter, namely, M/s. Amrit Jal Ventures Pvt. Ltd., which is a Corporate Debtor in other two cases, viz. CP (IB) No. 192/7/HDB/2017 and CP (IB) No. 228/9/HDB/2017 and that liability to pay ₹ 23.98 crores no more rests with the Corporate Debtor. The petitioner contends that notices were issued to M/s. Amrit Jal Ventures Pvt. Ltd. also and a petition being CP (IB) No. 228/9/HDB/2017 has also been filed against the said AJVPL. Since the said AJVPL has failed to honour its commitments made in the Settlement Agreement, the petitioner holds the respondent herein equally liable under the law for the default amount of ₹ 23.98 crores and hence the above amount is included in the claim amount shown in Form-5. 8.3 It is submitted in para 32 of the Written Submissions that since the respondent was not paying the debt amount of ₹ 23.98 crores as per the agreement and was contending that the only assignee, namely, M/s. Amrit Jal Ventures Private Limited is liable for the said amount, the petitioner had issued notices to M/s. Amrit Jal Ventures Private Limited and also preferred CP(IB) No. 228/9/HDB/2017 against AJVPL. Since AJVPL is not honouring it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy of balance amount the petitioner may initiate proceedings only against the promoter/AJVPL, to the exclusion of the GIPL/Corporate Debtor. Calculation Sheet showing payments made and to be made by the promoter/AJVPL with interest is at EXHIBIT P-5. Total amount payable by the promoter/AJVPL to the petitioner as on 03.08.2017 was ₹ 29,45,37,776/-. 13. As provided under Clause 2.3 of the Agreement, for recovery of balance amount due, the petitioner had issued notices to M/s. Amrit Jal Ventures Pvt. Ltd. and had also preferred a petition being CP (IB) No. 228/9/HDB/2017 against the said AJVPL. However, the petitioner sought permission to withdraw the said petition on the ground that CIRP started against the Corporate Debtor and the Operational Creditor filed its claim before IRP. The Adjudicating Authority, vide order dated 17.09.2019, has permitted to withdraw the said petition subject to outcome of the appeal preferred by the Corporate Debtor before the Hon'ble NCLAT. 14. Since the said AJVPL has failed to honour its commitments made in the Settlement Agreement, the petitioner holds the respondent herein equally liable under the law for the default amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid to the petitioner, the respondent is not liable to pay any amount. E-mail dated 21.01.2015, which is prior to MoU dated 20.05.2016, is of no consequence. (ii) The respondent is also not liable to pay amount of ₹ 1.95 crores or 2.03 crores towards Motorised Door and restoration of land/dump yards as the petitioner does not satisfy the requirements for payment of the said sum. 18. The respondent contends that the Corporate Debtor/company 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. 19. The petitioner contends that the respondent undertook liability of paying balance amount vide its e-mail dated 21.01.2015, (page 112). The respondent refutes the said claim on the ground that the said communication dated 21.01.2015 was prior to MoU dated 20.05.2016 (ANNEXURE-4, page 17 of the Counter). The MoU is in supersession of the e-mail. The petitioner cannot take benefit of correspondence between the parties occasioned prior to MoU. WRITTEN SUBMISSIONS DATED 05.02.2021 FILED ON BEHALF OF THE PETITIONER/OPERATIONAL CREDITOR. 20. The Operational Creditor has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed from respondent's e-mail ID, viz., anil.kavadiva@gatiinfra.com to the office bearers of one of the partners of the petitioner, viz. SEW Infrastructure Ltd. Said e-mail was marked to MD of the respondent. (ii) E-mail communications dated 17.10.2018 and 11.11.2018 proposing payment schedule, (para 13) 24. As regards the claim of ₹ 2,03,000/- withheld by the Corporate Debtor towards Motorised Door and restoration of land/dump yards which were pending as on the date of Settlement Agreement, it is submitted that out of the said amount, an amount of ₹ 1,95,000/- is outstanding. The said amount is payable directly by the respondent. Neither AJVPL nor any other parry is involved qua this amount. (para 15) 25. It is further submitted that the contention of the respondent that there were disputes regarding works as evidenced by letters dated 29.05.2014, 08.03.2014, 21.07.2014, 13.06.2014 and 22.08.0214. Those letters were addressed prior to completion of work. The respondent/Corporate Debtor has issued Certificate of Merit dated 24.09.2015, thereafter. Even after issuance of said Certificate of Merit no dispute was raised at any point of time after 24.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes very clear one point, viz., Shri C.L. Rajam is one of the arbitrators as per Exhibit P-4 and Shri Sairam is also one of the arbitrators. What could be inferred from the above e-mail sent by Shri Sunil Gupta, Director of the respondent/company is that there was a meeting held between the arbitrator and the respondent in which the Director of the respondent had not only categorically admitted the debt but also stated that payments would be made within due course. This particular e-mail has been sent to Shri C.L. Rajam, Arbitrator on 21.01.2015 at 05.13 PM. Shri C.L. Rajam has sent this particular mail to Shri Ramesh Gorripati of the petitioner/company. There is no doubt that originally in the Settlement Agreement dated 14.12.2013, which was entered into between (i) the petitioner, (ii) M/s. Amrit Jal Ventures Pvt. Ltd. (AJVPL), (iii) M/s. Mahendra Investment Advisors Pvt. Ltd., and (iv) Shri Mahendra Kumar Agarwal, liability to pay an amount of ₹ 10 crores was vested with the respondent and the balance of ₹ 23.98 crores was to be paid by M/s. Amrit Jal Ventures Pvt. Ltd. (AJVPL). It is also the fact that on 21.01.2015, Director of the respondent had categorically und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (c) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (d) That the order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. (e) That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016. (f) That this Bench hereby appoints Shri Nandiraju Prabhakar, son of N. Surya Narayana having IBBI Registration No. IBBI/IPA-002/IP-N00361/2017-2018/11030 as Interim Resolution Professional to carry on the functions as mentioned under the Insolvency Bankruptcy Code. He has filed Form-B issued by the Institute of Insolvency Professionals. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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