TMI Blog2021 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... can be arrived that there was no dispute between the Corporate Debtor and the Appellant. Whereas, to the contrary many disputes have been referred to in reply to the Demand Notice and in reply to Section 9 Application, which have been considered by the Adjudicating Authority. No error has been committed by the Adjudicating Authority in not entertaining the Application on the ground of pre-existing dispute. It is made clear that the rejection of Application under Section 9 of the IB Code shall not preclude the Appellant to raise his claim for payment of bills, if any, in accordance with terms and conditions of the work order. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 926 of 2021 - - - Dated:- 1-12-2021 - [Justice Ashok Bhushan] Chairperson , [Justice Jarat Kumar Jain] Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. Ashish Makhija, Ms. Richa Singh, Mr. Deep Bisht, Advocates JUDGMENT ASHOK BHUSHAN, J. This Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short IB Code ) has been filed against the order dated 03.05.2021 passed by the National Company Law Tribunal, New Delhi Bench-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 2018. The Adjudicating Authority vide its order dated 03.05.2021, rejected the Application of the Appellant filed under Section 9 of the IB Code, aggrieved against which order, this Appeal has been filed. 5. The learned Counsel for the Appellant contends that the Appellant successfully completed his contract work and after successful completion of the work, the Plant was also Commissioned in the year 2015. The Rajasthan Rajya Vidyut Utpadan Nigam Ltd. has also issued a Certificate in favour of the Appellant on successful completion of the work. The TDS was deducted by the Respondent on the bills, which indicate acceptance of bills by the Respondent. No suit for arbitration was filed by the Respondent prior to service of Demand Notice. There was no dispute regarding the bills prior to issuance of Demand Notice and plea of dispute as setup by the Respondent is a moonshine. Running account bills were prepared after the certification and verification of the quantity of the work at the site of the Corporate Debtor. The Adjudicating Authority committed error in rejecting the Application under Section 9 of the IB Code on the ground that there was pre-existing dispute. 6. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor vide letter dated 20th November, 2014, which letter has been brought on record along with the reply to Section 9 Application. The letter terminating the contract also refers to earlier six letters issued by the Corporate Debtor. It is useful to notice the contents of the letter, which is to the following effect: Dear Sir Kindly refer the Notice given by us vide our letter No.13062/Chhabra/Zillion/5366 dated 10th November, 2014 regarding your failure in performing the work in time. As stated in the Notice, we have repeatedly granted to you further time for improving the progress of work, but inspite of our repeated requests and follow up, you have not made any effort to improve the progress of work at site. You are also not making timely payment to your workers and staff at site even after getting the payment for your bills from us. As a matter of fact, you are diverting the payment given to you for paying the workers and your workers are repeatedly stopping the work at site. The same is further vitiating the working atmosphere at site. Under the above circumstances, we are not left with any other option but to terminate your contract with immediate effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, i. Interest, j. Costs. 12. Apart from the above it is also stated that Invoice No.62A have never been received by us. 13. The above stated claims of Indure against zillion running into several crores on account of idling cost, prolongation cost, overhead charges, loss of opportunity, loss of profit etc. On estimate basis the claims of Indure against zillion are in excess of ₹ 25 crores. However, at a more appropriate stage detailed and more particularized claims will be raised. In the past also Indure had clearly informed Zillion about the existence of Indure s claim against Zillion. On account of which till date the final bill in respect of the contract could not be settled. 17. In view of the above it is ostensibly clear that the disputes have already arisen between the parties herein and the same have to be resolved as per the dispute resolution process as stated in the work order/ contract read with GCC. Clause 16 of the work order provides for a settlement procedure followed by arbitration under clause 17. The said relevant clause 16 of the work order is being reproduced herein for ready reference: 16.0 SETTLEMENT OF DISPUTES 16.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h work order shall be terminated. Accordingly, vide letter dated 20.11.2014 (Page 38 of the reply) the Corporate Debtor had terminated the contract with immediate effect as per clause no. 15 of the work order read with clause no. 39 of GCC. It was also mentioned in that letter that the balance work shall be executed at the operational creditor s risk and the cost and excess payment in executing the balance work shall be recovered from the securities available to the Corporate Debtor under the contract. It was also mentioned that the damages will also be recovered from the Operational Creditor. 18. We would also like to refer to the emails exchanged between the parties (from page 14 to 22 of Written Submissions filed on 27.03.2021 by the Corporate Debtor) which show that the petitioner had sent several emails for recall of the termination of contract letter. Therefore, the contention of the petitioner s counsel that the said letter was never communicated to the petitioner is contrary to the emails exchanged between the parties. 19. Further contention of the petitioner is that the matter was never referred to the arbitrator, whereas in the course of hearing and in the writt ..... 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