TMI Blog2020 (1) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... ication stands dismissed as not maintainable. - C.P. No. (IB) 428/9/NCLT/AHM/2018 - - - Dated:- 2-1-2020 - Manorama Kumari, Member (J) and Chocklingram Thirunavukkarasu, Member (T) For Appellant/: Pavan S. Godiawala and Naishal J. Mody, Advocates ORDER Manorama Kumari, Member (J) 1. Mr. Sanjeev Angra, being authorised signatory, on behalf of the operational creditor M/s. Lloyd Insulations (India) Limited filed this Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ] read with Rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as the Rules ], as operational creditor/applicant. 2. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power project of M/s. Shirpur Power Private Limited at Nadana MIDC Area, Dhule, Maharashtra State. 6. It is further stated by the operational creditor that it supplied and executed various works in terms with the contract/purchase/work orders and raised various invoices from time to time for an amount of ₹ 22,89,43,075/-against which the corporate debtor made payment of ₹ 21,56,74,018/- leaving a balance amount of ₹ 1,32,69,057/- (Rupees one crore thirty-two lacs sixty-nine thousand fifty-seven only) which is still due from the corporate debtor. That, the operational creditor demanded payment of the pending invoices, when the corporate debtor failed to make payment of the same after due date. It is further stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor filed affidavit in reply inter alia raising the following objections: - (i) the instant application is not maintainable as it is mandatory for the operational creditor to prove that the debt alleged is not disputed and has been acknowledged by the corporate debtor; (ii) in all the respective six contracts Time was of the essence , meaning thereby that the operational creditor was bound to ensure fulfilment of the obligations under the contracts for supply of goods and provisioning of services strictly within the time period set out therein and in case of any delay it was liable to pay Liquidated Damages as provided for and computed under the respective contracts. However, the operational creditor did not perform its contractu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of half percentage of the contract price of the supply of the delayed unit, which shall be half of the total contract price as specified in clause 5.1 above, for each completed week of delay or part thereof subject to a maximum of 7.5% of the total contract price of the supply of respective unit delayed as specified in clause 5.1 above; 11.2 LD payable by the contract may be deducted by the owner from any outstanding payment due to the contractor 13. On perusal of the records it is also found that on 25.07.2014 a detailed email was sent by the official of M/s. Shirpur Power Pvt. Ltd. - the client of the instant corporate debtor, pointing out the delay and deficiency in supply and services in respect of the three packages viz. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mobilox case, while examining an application under Section 9 of the Act, will have to determine the following: - (i) Whether there is an operational debt as defined exceeding ₹ 1.00 lac (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid; and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. 17. From the above stated disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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