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TMI Blog2022 (7) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... on professional. 4. Part IV of this application contains details of particulars of Debt and documents in support of it date from which it fell due is claimed. 5. Submissions on behalf of the Operational Creditor: 5.1 The case of the Operational Creditor is that it performed post-tensioning works for a project of the Corporate Debtor after the selection of the bid of the Operational Creditor in the tender process called for by the Corporate Debtor. A Letter of Intent dated 28th July, 2008, was issued by the Corporate Debtor to the Operational Creditor and an Agreement dated 10th September, 2008 was signed / executed by and between the Operational Creditor and the Corporate Debtor above named. 5.2 The Corporate Debtor fully accepted the services rendered by the Operational Creditor under the aforementioned agreement dated 10th September, 2008, and aforementioned Letter of Intent dated 28th July, 2008, without any demur or protest or objection whatsoever. Running and continuous accounts were maintained as per usual commercial practice by the Operational Creditor and all running bills/RA Bills/Invoices were raised by the Operational Creditor directly and solely against the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard. 5.8. A total amount of Rs.33,27,947.79/- as on 9thAugust, 2019 including interest at the rate of 18% per annum, was due and payable by the Corporate Debtor to the Operational Creditor. 5.9. Accordingly, the Operational Creditor issued a demand notice as per section 8 of the Insolvency and Bankruptcy Act, 2016, dated 9th August, 2019, and called upon the Corporate Debtor to pay the debt/outstanding admitted principal amount of Rs.17, 72, 655/- (Rupees Seventeen Lakh Seventy Two Thousand Six Hundred and Fifty Five only) along with applicable interest thereon. The said demand notice was received by the Corporate Debtor on 13th August, 2019. A true copy of such demand notice dated 9th September, 2019 along with the Postal Receipt issued by the speed post authorities and the track report as available from the website of the speed post authorities, constituting Proof of Delivery that evidences receipt of the said demand notice by the Corporate Debtor on 13th August, 2019, are annexed to the instant notice and collectively marked as "Annexure H". 5.10. The Operational Creditor states that the Corporate Debtor responded to the aforementioned demand notice dated 9th August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said letter of Intent. 5.13. The Corporate Debtor has not disputed the total amount claimed by the Operational Creditor in the said demand notice dated 9th August,2019 and has not brought to notice any pre-existing dispute in its said reply dated 23rd August,2019 either. It has accepted the total amount claimed by the Operational Creditor in the said demand notice by not disputing in any manner in its said reply dated 23rd August,2019. In this connection a true copy of the said letter dated 23rd August, 2019 issued by the Corporate Debtor and purporting to be a reply to the said demand notice issued by the Operational Creditor is annexed herewith and marked as "Annexure I". 5.14. The documents relied on by the Operational Creditor to establish its case include: a. The letter of Intent dated 28th July 2008 annexed as Annexure D, b. The Agreement between the parties dated 10th September 2008 annexed as Annexure D, c. Confirmation of accounts provided by the Corporate Debtor to the Operational creditor annexed as Annexure E, d. Bank Statements of the Operational Creditor annexed as Annexure F, e. Final bill 31-12-2015. f. Confirmation of balance letter dated 23-04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipts issued by the operational creditor in favour of Barnaparichay, copies whereof are collectively annexed to the Reply-Affidavit and marked "D". 6.8. There was no jural relationship between the Operational Creditor and the Corporate Debtor. The demand notice of 9th August 2019 is mala fide and issued with ulterior motive and interest. In the reply to the said demand notice dated 23rd August, 2019 it was categorically indicated that the Operational Creditor has to raise all its claims against Barnaparichay and not against this Corporate Debtor as there was no privity of contract between the parties. As such, the question of denying the frivolous claim made in the demand notice did not arise. 6.9. All allegations on account of default are denied and disputed. In any event, it appears that the claim is barred by the law of limitation. Further, as there is no privity of contract between the parties, the question of denying any of the claims or dispute the claims by this Corporate Debtor does not arise. There is no default in so far as the Corporate Debtor is concerned as there was no obligation of this Corporate Debtor to make payment to the Operational Creditor 6.10. The Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince 2008 and part payments for the goods and services rendered to the Corporate Debtor were received by the Operational Creditor against such bills/"RA Bills"/invoices and such part payments constitute further acknowledgment by the Corporate Debtor of the privity of contract existing between the Corporate Debtor and Operational Creditor. 7.6. No protest against and/or reservation regarding the issuance of invoices/"RA Bills"/bills against the Corporate Debtor itself was ever communicated by the Corporate Debtor to the Operational Creditor. 7.7. The purported letter dated August 06, 2009 along with its purported enclosure that collectively constitute Annexure A to the Reply affidavit will show that the Operational Creditor did not assign the contract to Barnaparichay Book Mall Pvt Ltd. 7.8. Furthermore, it is denied that the said purported letter dated 06.08.2009 issued by the Corporate Debtor was ever received by the Operational Creditor. No postal receipt and/or proof of service or track report pertaining to the said purported letter purportedly dated August 06, 2009, along with its purported enclosure has been placed on record and annexed to the counter affidavit by the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mall Pvt Ltd. 7.14. The part payments made to the Operational Creditor through the accounts maintained by the said subsidiary of the Corporate Debtor have been made on the explicit direction and/or instructions of the Corporate Debtor itself in order to partly satisfy its own liability against invoices/ RA Bills raised against directly against the Corporate Debtor. 7.15. The very fact that part payments were made to the Operational Creditor against such invoices/"RA Bills"/Bills proves that privity of contract has uninterruptedly existed between the Corporate Debtor and Operational Creditor. 7.16. The TDS for such part - payments and consequent Form 16 A issued by the said subsidiary do not extinguish the privity of contract of the Operational Creditor with the Corporate Debtor. 7.17. The fact that the Operational Creditor never placed reliance on any purported confirmation of accounts by Barnaparichay Book Mall Pvt Ltd is made apparent from the fact that the Operational Creditor consistently raised its demands for payment of outstanding operational debt in various letters/ correspondence addressed solely to the Corporate Debtor till as late as the institution of the instant A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulting in substitution of liabilities. On the other hand, rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties." [Para 7] In Kapilaben (Supra), the Hon'ble Supreme Court further held that: "Even in a case of assignment of rights simplicitor, such assignment would necessarily require the consent of the other party to the contract if it is of a 'personal nature'. This is elucidated by learned authors Pollock and Mulla in their commentary on The Indian Contract and Specific Relief Acts (R. Yashod Vardhan, and Chitra Narayan eds., 15th edn., Vol. I) at page 730: A contract which is such that the promisor must perform it in person, viz. involving personal considerations or personal skill or qualifications (such as his credit), are by their nature not assignable. The benefit of contract is assignable in 'cases where it can make no difference to the person on whom the obligation lies to which of two persons he is to discharge it.' The contractual rights for the payment of money or to building work, for e.g., do not involve personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Resolution Process for Corporate Persons) Regulations, 2016. e. Mr. Jai Narayan Gupta, registration number IBBI/IPA-001/IPP00371/ 2017-2018/10628, email: [email protected] is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the Code. He has a Authorisation for Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016 valid upto 28 November 2022. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out her functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. f. During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps ..... X X X X Extracts X X X X X X X X Extracts X X X X
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