TMI Blog2022 (2) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the issuance of the demand notice. It is well settled that an applicant u/s 9 of the IBC is required to be dismissed if genuine dispute exists between the parties. In this Petition the Petitioner has clubbed the payments of two projects, one each at Bongaigaon and Haldia under two different work orders as part of a single Petition. This, as per the Bench, in terms of the clubbing of two claims under different work orders for different amount is not permissible. Petition dismissed. - CP(IB)-982/(MB)/2020 - - - Dated:- 25-2-2022 - Hon'ble Shri H.V. Subba Rao, Member (Judicial) and Hon'ble Shri Chandra Bhan Singh, Member (Technical). For the Applicant : Mr. Sagar Divekar, Advocate. For the Respondent : Mr. Sameer Pandit, Advocate, i/b Wadia Ghandy Co. ORDER Per: Chandra Bhan Singh, Member (Technical). 1. This Company Petition is filed by M/s Godrej Boyce Mfg. Company Ltd. (Operational Creditor) seeking to initiate Corporate Insolvency Resolution Process ( CIRP ) against M/s Satec Envir Engineering (India) Pvt. Ltd. (Corporate Debtor) invoking the provisions of Section 9 of the Insolvency Bankruptcy Code, 2016 for an operational debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abovementioned Purchase/ Work Orders is Rs.2,45,51,514/-. Out of which an amount of Rs.11,25,000/- was paid against two invoices bearing Nos. GZI/31061657 and GZI/31061658 both dated 30.05.2017. 2.6. The Petitioner further submits that it issued an email dated 15.06.2017 and conveyed to the Respondent that they are waiting for the LC for the Haldia and Bongaigaon sites from the Respondent. 2.7. The Petitioner submits that for the Bongaigaon site an email to the Respondent on 03.07.2017 was sent with a request to the Respondent to release the due payment for the same. Further, vide email dated 11.07.2017 the Petitioner has provided a detailed list of all the outstanding dues payable by the Respondent in a tabular form a copy of which is in the Petition at Exhibit J . It was also informed to the Respondent that the Petitioner s corporate team decided not to proceed with the installation until the payment for supply was cleared by the Respondent. The Petitioner issued emails to the Corporate Debtor on 11.07.2017 and 14.10.2017 requesting the Corporate Debtor to release the outstanding dues, due and payable by the Respondent for the work done by the Petitioner and the materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Satec, (the Corporate Debtor/ Respondent herein) due to which the entire process is held up. The Petitioner requested for a formal Purchase Order from IOCL and informed EIL on 14.01.2019 that it would not be possible for the Petitioner to execute the work without a formal Purchase Order from IOCL. 2.12. The Petitioner issued a Demand Notice on 23.10.2019 under Rule 5 Clause (a) in Form No.3 under the Insolvency Bankruptcy Code (Application to Adjudicating Authority) Rules, 2016 to the Respondent claiming an amount of Rs.3,33,90,057/-. The Petitioner submits that the Demand Notice was received by the Respondent on 27.10.2019. The Petitioner mentions that the same was replied on 20.12.2019 alleging that the demand notice was defective and the same be withdrawn. The Respondent also stated in the reply that the amount claimed by the Petitioner was not payable by them on the ground that IOCL had already issued Comfort letters to the Petitioner that IOCL will directly make payment to the Petitioner in case the Respondent failed to do so as against the work completed by the Petitioner and that the Petitioner is also aware about the same and had allegedly agreed to receive direct pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efects in the material supplied by the Petitioner. Respondent also submits that vide its letter dated 20.12.2019 it has categorically disputed the claims of the Petitioner. Thus, there is no debt and/ or operational debt due from the Respondent and in any event, the same is disputed. 3.4. The Respondent also denies the stand of the Petitioner that no notice had been given by the Respondent relating to any dispute with regard to the alleged operational debt. The Respondent states that it had disputed the existence of the alleged operational debt vide its letter dated 20.12.2019. The Respondent also pleads that as per Section 9(5)(ii)(d) it is clearly mentioned that in the event the Respondent has sent a notice of dispute to the Applicant, the Hon'ble NLCT is required to reject the Application. 3.5. The Respondent also submits that the Respondent was appointed as a contractor by IOCL for its project sites at Haldia and Bongaigaon and was executing the projects for Indian Oil Corporation Ltd (IOCL). Engineers India Ltd ( EIL ) was appointed as the Project Management Consultant by IOCL. The Respondent thereafter engaged the Petitioner for supply and installation of Multitier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any amounts to the Petitioner as the same has been taken over by IOCL. Thirdly, the Petitioner has agreed and accepted the fresh arrangement to directly receive payment from IOCL and directly execute the work for IOCL without the Respondent s intervention. The Petitioner accepted the fresh terms of payment of IOCL and supplied the material and completed the installation on site as required by IOCL. The Respondent had also disputed the claim of the Petitioner. Therefore, the claims made are not only false and frivolous but are also disputed by the Respondent. 3.9. The Respondent alleges that in the present case, the Demand Notice issued by the Petitioner is ex-facie defective as it fails to mention the date on which the alleged default occurred. Thus, the present Petition which is filed on the basis of a patently defective Demand Notice is not maintainable. 4. The Respondent also submits that the pre-requisite for maintaining an Application under Section 9 of the IBC is the existence of an Operational Debt due from the Respondent to the Applicant and relied on Section 5(20) of the IBC which reads as under:- a claim in respect of the provision of goods or services inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per the Respondent, the Petitioner had not produced any proof or material to show that the aforesaid defects were rectified or the satisfactory completion certificates were issued by EIL or IOCL. The Respondent also says that the Petitioner abandoned the project and failed to complete 100% of the work and cannot claim to be entitled to payment for such defective and incomplete work. The Respondent holds that there were genuine pre-existing disputes long prior to the issuance of demand notice and therefore the Petition filed u/s 9 of the IBC deserves to be dismissed. FINDINGS : 7. This Petition has been filed by the Operational Creditor M/s Godrej Boyce Mfg. Co. Ltd. against Respondent/ Corporate Debtor, Satec Envir Engineering (India) Pvt Ltd u/s 9 of the IBC. This Petition has been filed for a total debt of about Rs.2.34 crores arising out of two sets of Purchase and Work Orders for the supply of Heavy Duty Racks and Multitier Shelving System for Indian Oil Corporation Ltd (IOCL) s two projects, one each at Haldia (West Bengal) and Bongaigaon (Assam). As per the submissions made by the Petitioner, each of the projects have two components, the first relating to supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Engineers India Limited ( EIL ) who are Project Monitoring Consultant for the Bongaigaon project and IOCL. A snap shot of the Minutes is as under:- 10. It is clear from the above Minutes that there were host of work related issues/ disputes between the Engineers India Limited (the Project Consultant), IOCL (the client) and the Petitioner regarding the quality of work and quality of material etc. It is interesting to note here that in the process the Respondent, against whom the Petition has been filed, was not even a party. In fact, the Petitioner itself has mentioned in its Petition that they could not complete the installation of the project. Further, in the Minutes of the Meetings it has been mentioned that : 2. M/s Godrej informed IOCL/EIL that they will carry out the installation of Racking system on subject to direct payment from IOCL. IOCL/EIL are pursuing with M/s Satec for issue of their acceptance letter for making direct payment to M/s Godrej on their behalf by M/s IOCL This shows that Godrej had informed IOCL and EIL that they will carry out installation of the racking system if direct payment from IOCL is given. Therefore, it is clear to this Bench t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when it can be cleared. Thanking you With warm regards Smarajit Chandra, Asst. General Manager Projects Godrej Storage Solution 12. The Bench here would note that no copy of this letter has been marked to the Respondent. Here, the letter mentions about a comfort letter dated 23.01.2018 which was issued by Indian Oil Corporation Limited (IOCL) to Godrej Boyce Mfg. Co. Ltd where it had mentioned that, for delivery and installation under the Haldia project of IOCL, the Indian Oil Corporation undertakes to release payment directly to M/s Godrej Boyce against material and installation of complete racking system. It had also mentioned that Indian Oil would release payment within 30 days from the date of submission of bill along with related document at site. This letter dated 23.01.2018 also forms part of the Petition. 13. The Bench notes that in a letter dated 20.12.2018 addressed to IOCL, the Petitioner who are the contractors, themselves had mentioned to IOCL, that the racking material due to exposure to rains and dust during installation and because of negligence and improper storage had corroded. Therefore, the Petitioner had strongly recommended that IOC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous, hypothetical or illusory, the adjudicating authority has no other option but to reject the application. 16. In this Petition the Petitioner has clubbed the payments of two projects, one each at Bongaigaon and Haldia under two different work orders as part of a single Petition. This, as per the Bench, in terms of the clubbing of two claims under different work orders for different amount is not permissible. As per the pronouncement made by Hon'ble NCLAT in the matter of International Road Dynamics South Asia Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 72 of 2017] where the NCLAT had held the following :- 10. We are of the view that different claim(s) arising out of different agreements or work order, having different amount and different dates of default, cannot be clubbed together for alleged default of debt, the cause of action is being separate. For the said reasons, we hold that the joint application preferred by appellant under Section 9 is defective, as distinct from incomplete, and, was not maintainable. 17. In view of the above, the Bench dismisses the CP(IB)-982/(MB)/2020 filed by the Petitioner u/s 9 of the Insolvency Bankruptcy Code, 2016. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
