TMI Blog2021 (11) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... (Technical) For the Appellant : Mr. Susheel Cyriac, Mr. Ankur S. Kulkarni, Mr. Nirnimesh Dube and Ms. Uditha Chakravarthy, Advocates For the Respondent : Mr. Alok Kumar Kunchhal, Advocate JUDGMENT Justice Anant Bijay Singh; This Appeal has been preferred by the Appellant aggrieved and dissatisfied by the order dated 24.10.2019 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Principal Bench at New Delhi in Company Petition No. (IB)-1722 (PB) /2019 whereby and where under the application filed by the Appellant (herein) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) was rejected. 2. The facts giving rise in the instant Appeal are as under: i) That the Appellant is a Sole Proprietor construction firm, engaged in the mechanical construction work in projects since its inception in the year 1984, with specialisation in air pollution control technology and effluent treatment technology and others. ii) The Respondent Corporate Debtor was formerly known as NTPC ALSTOM Powers Service Pvt. Ltd. and pursuant to acquisition of former company by GE Power System was changed to NTPC GE POWER SERVICES PRIVATE LI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its outstanding payment but to no avail (Annexure A-9 at page 120 to 124 of the Appeal Paper Book). ix) The Appellant served a Demand Notice dated 08.03.2019 in Form 3 in accordance with Section 8 of the IBC, 2016 read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 on the Respondent Company. The Respondent Company has neither responded to the said notice with regard to the existence of a dispute etc. nor paid the unpaid operational debt within the given stipulated time period of 10 days from the receipt of the said notice (Annexure A-10 at page 125 to 207 of the Appeal Paper Book). x) The Appellant, thereafter, filed application under Section 9 of the IBC before the Ld. Adjudicating Authority bearing Company Petition No. (IB)-1722(PB) / 2019 for initiation of Corporate Insolvency Resolution Process. The Ld. Adjudicating Authority after hearing the parties vide order dated 24.10.2019 rejected the aforesaid application. Hence the Appeal. Submissions on behalf of the Appellant 3. The Learned Counsel for the Appellant during the course of argument and his memo of Appeal while assailing the impugned order submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,75,00,000/-. 9. It is further submitted that on 07.12.2015 further amendment was made in work order dated 12.06.2015 wherein order was amended to incorporate BOQ for Mechanical Erection of Unit 3 4 and other terms and conditions and value of the contract had remained same. 10. It is further submitted that subsequently a further amendment was carried out in work order dated 12.06.2015 where the total price of the contract was increased to ₹ 7,65,14,594.04. 11. It is further submitted that paragraph 5 of the Reply Affidavit few important clauses of the work orders executed between the parties is hereunder: a. Terms Conditions of Work Order (refer work order No. WO/15-16/0029 dated 12.06.2015 (at page 66 of the Appeal Paper Book) Para titled as Change order: During the execution of the contract, NASL reserves the right to increase or decrease the scope of work envisaged under the contract. Such increase or decrease in the scope shall be covered under change order or a contract amendment. b. Standard Terms Conditions of Work Order (refer clause No. 8 of amendment work order No. WO/15-16/0029.1 dated 07.12.2015 (at page 71 of the Appeal Paper Book) Para ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had called the appellant in his office for quantifying and calculating the value of additional work. But the appellant had categorically refused to discuss regarding the additional work and had raised the bill as per his whims and wishes. 13. It is further submitted that the Appellant just to avoid his liabilities as per the contract and to misguide the court, had concocted a fake story before the Hon ble Principal Bench and before this Hon ble Appellate Bench which can be inferred from the fact that the appellant had mentioned before the Hon ble Principal Bench that first time the respondent had raised a dispute vide their letter dated 20.03.2019 and that s too was came to his knowledge after receiving the reply to the petition before the Hon ble Principal Bench while the notice of demand was raised by the appellant on 08.03.2019 and before that the Respondent Company had never raised any dispute which in itself is a complete false statement as there was a pre-existing dispute between the parties which can be substantiated from the below mentioned facts: a. That on completion of project by the appellant, the respondent had received the final bill amounting to ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the appellant was adjusted against liquidated damages. It is further submitted that the act of the Respondent Company of deducting the liquidated damages is appropriate which can also be verified from the letter of the ultimate service holder i.e. Gujarat State Electricity Corporation Limited (GSECL) wherein the GSECL had also deducted the liquidated damages from the account of the Respondent Company because of delay in completion of the supply of material. Hence, the Respondent Company had also charged the liquidated damages from the Appellant. Copy of letter dated 29.07.2015 issued by GSECL is also attached as Annexure-4 at page 34 of the Reply Affidavit. 15. It is further submitted that the bills amounting to ₹ 1,42,72,787/- of additional work are fake bills as those bills was never part of work order and was allegedly raised unilaterally and was never been admitted by the Respondent Company and the same can be substantiated from the admission of appellant and his submission of certificate of CA of Respondent Company. 16. It is further submitted that there is a pre-existing dispute which was raised well within the time period between the parties and which co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended work order was for carrying out mechanical erection work at UKAI TPS 2x200 MW, Unit 3 4, for a total price of ₹ 7,65,14,594/- (Rupees Seven Crore Sixty-Five Lakh Fourteen Thousand and Five Hundred Ninety-Four Rupees only). It is also admitted fact that the work was completed by the Appellant in terms of the said Work Orders and amended Work Orders and accordingly Invoices were raised during the period of 19.04.2016 to 20.04.2018. The total bill of ₹ 9,22,22,917/- was raised out of which ₹ 7,76,50,619/- was paid and a balance amount of ₹ 1,33,40,071/- is still due and payable to the Appellant. Further, additionally two separate bills of ₹ 1,19,12,821/- and ₹ 23,59,966/- both aggregating to ₹ 1,42,72,787 was also raised for additional work done. From the perusal of the Application bearing Company Petition No. (IB)-1722 (PB) / 2019 filed by the Appellant which is Annexure A-13 total amount of debt mentioned in Part-IV Particulars of Operational Debt is as under: It is also admitted fact that the Respondent in their Reply Affidavit filed before the Ld. Adjudicating Authority and also this Tribunal have observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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