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TMI Blog2021 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.11.2011 bearing CIN: U15200TZ2011PTC017585 and the Registered Office address of the Corporate Debtor as per the Application is stated to be situated at No. 34 & 84, Jeevanantham Street, Kollampalayam, Erode District, Tamil Nadu 638 002. From Part III of the Application, it is seen that the Operational Creditor has not proposed the name of the IRP and left it to the discretion of this Tribunal to appoint the IRP. 3. Part IV of the Application states that a sum of Rs. 3,07,81,310/- is due and payable by the Corporate Debtor. Part V of the Application discloses the list of the documents which have been filed by the Operational Creditor in order to prove its Operational Debt and the list of documents which filed along with the Application are as follows; a) Deed of Agreement dated 18/05/2014 and LOI 23/04/2014 b) Running Account Bills c) Ledger Statement 4. The Learned Counsel for the Operational Creditor submitted that the Operational Creditor is in the business of execution of Civil construction works on contract basis and the Corporate Debtor had engaged the Operational Creditor under a Deed of Agreement dated 18.05.2014 for the purpose of construction of industrial build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff its liability towards the Operational Creditor and that it was submitted that the dispute which is raised by the Corporate Debtor is nothing but an after-thought, hypothetical and illusory in nature. 10. Further, it was submitted by the Learned Counsel for the Operational Creditor that the Corporate Debtor even after the receipt of Demand Notice has failed to make any payments. There are no prior disputes between the parties and no arbitration/legal proceedings are pending relating to the supply of services mentioned in this application. 11. Further, it was submitted by the Learned Counsel for the Operational Creditor that the Corporate Debtor has made a payment of Rs. 8,82,000/- on 25.06.2018 which is the last payment received towards the outstanding bills. Therefore, the claim of Operational Creditor is well within the period of limitation of three years. 12. The Respondent has filed the Counter. The Learned Counsel for the Respondent at the outset submits that the Respondent has been involved in the dairy business for past 37 years and handling only liquid milk, curd and butter milk and in the year 2014. It was submitted that the Corporate Debtor had decided to enhance the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed by the Corporate Debtor wherein the Operational Creditor has stated that there is no pre-existing dispute between the parties and that the Corporate Debtor had granted extension of time as permitted under clause 16 of the contract and now they cannot deny the same and allege delay on the part of the Operational Creditor. Further, it was submitted that if the claim of delay is genuine, the Respondent would have imposed liquidated damages on the Applicant as stated in clause 3 of the Contract. However, it was submitted that the Corporate Debtor has neither invoked the aforementioned clause nor sought damages from the Operational Creditor for the loss caused due to alleged delay. 17. The Learned Counsel for the Operational Creditor submits that the project was completed and handed over to the Respondent in the year 2016. As per clause 14 of the contract, the defects liability period is for 12 months from the date of virtual completion or occupation of buildings. The Respondent had not communicated about any defects to the Applicant during the defect liability period and even during this period the Respondent has made payments. 18. It was further submitted by the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own to your son that erection in evaporator and dryer area to start from 15 April. Your son had promised to take solid steps to cast 20 m level slab of evaporator and 22 m level slab of dryer in the first week but in spite of the slabs ready for casting since last seven days today we are informed that due to non availability of cement with ready mix suppliers concreting will be delayed till cement arrives. This clearly shows your negligence in getting things done. You are not bothered about the client since you get money without doing work. PI try to understand the problems of client at this stage. You have no intention to save your and company image in the area where your HO is located. PI try to avoid a situation when works will have to be got done at your risk and cost. With deep sorrow and pity on the site management team. PI do something now or leave it". 22. Further, it is also seen that the Operational Creditor vide an e-mail dated 21.09.2019 has written to the Corporate Debtor as follows; Dear sir, Yesterday we have visited your premises as per the instructions given by our Managing Director, URCC and took a consolidated note on the defects said by your team. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court of India in the matter of M/s. 'Mobilox Innovations Pvt. Ltd. Vs. 'Kirusa Software Pvt. Ltd.' (2018) 1 SCC 353 has clearly laid down that the test for determination for the Adjudicating Authority is to see at the stage of Admitting/rejecting the Application is whether there is a plausible contention which requires further investigation and that the 'Dispute' is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster'. Thus, it is not required for this Adjudicating Authority to explore the gravity and intensity of the dispute which exists between the parties and is only required to see that whether the dispute as raised by the Respondent requires further investigation and that the dispute is not patently feeble legal argument or an assertion of fact unsupported by evidence. 26. Thus, from the discussions made supra we are of the view that there exists a dispute between the parties and the said dispute required further investigation and the alleged debt and default, can be established only after de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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