TMI Blog2022 (4) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... urement of MVRE bags, delay in completion of the work on the basis on which the work has been progressed in relation to the Operational Creditor - it is noted from the application that the Corporate Debtor has not replied to the demand notice sent by the Operational Creditor. However, it is seen that the Corporate Debtor has raised various disputes and deficiencies in the work carried out by the Operational Creditor and that the series of letters exchanged between the parties show that there is a dispute between the parties in relation to work done by the Operational Creditor. This Tribunal being an Adjudicating Authority under the IBC, 2016 and the proceedings before this Tribunal being summary in nature, this Tribunal unlike a Civil Court cannot indulge in the luxury of taking evidence and that the debt and default on the part of the Corporate Debtor is required to be proved by the Operational Creditor beyond reasonable doubt - there exists a dispute between the parties and the said dispute required further investigation and hence the Application filed by the Applicant/Operational Creditor under Section 9 of the IBC, 2016 stands dismissed. Application dismissed. - IBA/365 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. b. Operation and Supervision, Maintenance and Repair Agreement (Collectively referred as O M Agreements) between Operational Creditor and the Corporate Debtor dated 23.08.2013. c. Operational Creditor's invoices dated 31.07.2018, 31.08.2018, 30.09.2018, 31.10.2018, 30.11.2018, 31.12.2018, 31.01.2019, 28.02.2019, 31.03.2019, 30.04.2019, 31.05.2019 towards O M Services and 07.12.2018 towards PMA services. d. Operational Creditor's various reminder letters sent to the Corporate Debtor. e. Demand Notice issued by the Operational Creditor issued on 10.01.2020. 5. The Learned Counsel for the Operational Creditor submitted that the Corporate Debtor approached the Operational Creditor to implement a technology to operate and to achieve Zero Liquid Discharge (ZLD). 6. In pursuance of the same, both the parties entered into a Project Management Agency Agreement (hereinafter referred to as PMA ) dated 22.08.2012. The fee payable to the Operational Creditor was set out in Clause 8.1 of the PMA Agreement. Thereafter, the Corporate Debtor requested the Operational Creditor to take over Operation and Maintenance of its Common Effluent Treatment Plant (CETP) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor about closure of Corporate Debtor's member units by TNPCB and requested to temporarily demobilise operations. Thereupon, the Operational Creditor through its letter dated 24.06.2019 conveyed its decision to demobilise and requested the Corporate Debtor to clear the outstanding dues. To this, the Corporate Debtor agreed to pay through monthly instalments of ₹ 5,00,000 which was rejected by the Operational Creditor. The Corporate Debtor had thereafter; vide its letter dated 09.08.2019, raised wholly untenable reasons inter-alia, pertaining to delay in procurement of MVRE bags, non-functioning of member units which were rejected by the Operational Creditor. 11. After numerous communications, a Demand Notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 was issued by the Operational Creditor to the Corporate Debtor on 10.01.2020 and the same was delivered to the Corporate Debtor on 30.01.2020, to which the Corporate Debtor has not responded. It was also submitted that the Corporate Debtor has not paid the outstanding amount as per the invoices and no reply to these invoices were made by the Corporate Debtor. Under these circumstances, the Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sum which is due and payable by the Corporate Debtor to the Operational Creditor. This Adjudicating Authority in order to come to the conclusion that the Corporate Debtor has committed default in paying the debt amount which is due to the Operational Creditor, as to the facts of the present case has to examine in detail the clauses contained in the O M Agreements dated 23.08.2013 entered into between the parties. 18. It is seen that the Corporate Debtor has enclosed all communications which were exchanged between the parties. On the perusal of the said documents, it is sufficiently made clear that the Corporate Debtor has raised a 'dispute' in relation to the delay in procurement of MVRE bags, delay in completion of the work on the basis on which the work has been progressed in relation to the Operational Creditor. 19. Further, it is noted from the application that the Corporate Debtor has not replied to the demand notice sent by the Operational Creditor. However, it is seen that the Corporate Debtor has raised various disputes and deficiencies in the work carried out by the Operational Creditor and that the series of letters exchanged between the parties show that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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