9911796707
TMI Blog2022 (10) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, this Bench has jurisdiction to deal with this petition. Brief Facts of the case: 3. The present petition was filed on 13.03.2019 before this Adjudicating Authority (AA) on the ground that the Corporate Debtor failed to make payment of a sum of INR 47,93,013/- (INR Forty-Seven lakhs Ninetythree thousand and thirteen only) being INR 25,29,159/- the Principal Amount and interest of Rs.22,63,853/- calculated @11.125% p.a. upto 06.02.2019 (Petition pg. 15). However, the interest will be calculated upto the date of final payment. The date of default is 11.06.2015. 4. The Operational Creditor is a manufacturer, installation and supplier of Serveron make Model-TM-8 Transformer Online Dissolve Gas Analyzer with 8 Gas Analyzer and Moisture. Submissions made by the Counsel for Operational Creditor: 5. The Nuclear Power Corporation of India Ltd., (hereinafter referred to as the "Corporate Debtor") approached KVTEK Power Systems Pvt. Ltd., the (hereinafter referred to as the Petitioner/"Operational Creditor") for supply and installation of Serveron make Model-TM-8 Transformer Online Dissolve Gas Analyzer with 8 Gas Analyzer and Moisture (hereinafter referred to as "the Equipm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyed to the Corporate Debtor that ERDA lab results cannot be relied upon and Corporate Debtor should get the transformer oil tested from some other test lab like PGCIL test lab in Bhiwadi which is not only NABL accredited lab but also equipped with the best equipment and most experienced engineers in this field to ensure reliability of the test results. 10. The Operational Creditor further submits that vide email dated 08.09.2016 he informed the Corporate Debtor based on the feedback from their US supplier that it is the ratio of CO2 & CO that matters in analysing the health of transformer and not the individual readings. It was also informed by the said email that comparison done by Corporate Debtor is not fair as the ERDA test lab results are of the oil sample taken in the month of April 2016 and the same is being compared with online DGA results of July 2016. State of gases dissolved in the transformer oil can dramatically change with such a wide time gap between the two readings (Page 95). 11. Despite these clarifications Corporate Debtor took no steps to cross verify the transformer oil sample results by comparing the same with the test results of some alternate lab as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment nor the 'C' Form has been received for the past 3 years. Copy of the said reminder email is annexed to the Petition as Annexure A-15 (page 110). 15. The Operational Creditor wrote another email dated 03.11.2018 to the Corporate Debtor reflecting the comparison between the test of PGCIL lab and ERDA lab. It was mentioned that the tests of PGCIL was comparable with the Online DGA result rather than the tests done by ERDA Lab. Copy of the email dated 03.11.2018 is annexed to the Petition as Annexure A-16 (pages 111-115). 16. On failure to receive any amount due from the Corporate Debtor, the Operational Creditor sent a demand notice dated 22.11.2018. A copy of the demand notice has been annexed as Annexure A-1 to the Petition. The Corporate Debtor on 06.12.2018 replied to the Demand Notice dated 22.11.2018 sent by Operational Creditor, however, failed to raise any dispute with respect to the purchase order. The Operational Creditor has filed the present application seeking their legitimate dues, by disclosing all the relevant facts and documents, from the Corporate Debtor. Copy of the reply to the said Demand Notice sent by Corporate Debtor is annexed to the Petition as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. The Corporate Debtor submits that the Operational Creditor has suppressed the true and material facts in the instant case and has preferred this Petition only with an intent to arm twist the Corporate Debtor unto making payment which the Operational Creditor is not entitled to. 21. The Corporate Debtor submits that on receipt of the Demand Notice dated 22.11.2018, the Corporate Debtor had as and by way of reply disputed the claim vide letter dated 06.12.2018 which the Operational Creditor has conveniently suppressed. Further submitted that Operational Creditor's work under the Purchase Order was unsatisfactory and consistently failed to meet the specifications prescribed thereunder. The Corporate Debtor issued a series of correspondences and reminders for rectification of the same. Such correspondence are listed out in the reply to Demand Notice dated 06.12.2018 and annexed to the Affidavit in reply as Annexure - A (pages 12-21). 22. The Corporate Debtor submits that the Invoice dated 11.06.2015 is barred by law of limitation. Further submits that the Operational Creditor has never raised any dispute and never invoked the dispute resolution mechanism as contemplated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e delivery period upto 15.05.2015. Copy of the said emails dated 25.04.2015 and 04.05.2015 are annexed as Annexure -C (colly) (pages 99-100). The Operational Creditor miserably failed to deliver and install the Equipment even within the extended delivery period i.e. upto 15.05.2015. Therefore, the Corporate Debtor was constrained to send a reminder letter dated 27.05.2015 to the Operational Creditor and the Operational Creditor vide their email dated 02.06.2015 admittedly acknowledged the delay caused on part of the Operational Creditor. Copy of the correspondence dated 27.05.2015 and 02.06.2015 are annexed as Annexure - D (colly) (page 101). 27. Corporate Debtor submits that there was no delay in issuing road permit on their part. The Corporate Debtor further submits that as per the records available with them, the Operational Creditor made a request for Road Permit on 11.06.2015 and the same was provided by the Corporate Debtor on the same day. Copy of the email dated 11.06.2015 is annexed as Annexure - E (page 102). Despite repeated follow-ups and reminders, the Operational Creditor could not supply the Equipment till 27.06.2015, therefore the Corporate Debtor once again issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installed has not been resolved till date. A table showing nonsatisfactory performance of online DGA as furnished in the reply to the Demand Notice is annexed as Annexure - K (pages 113-184). The Operational Creditor has also accepted the fault in the Equipment and assured to rectify it and the same was recorded in the minutes of the meetings held on various dates 05.12.2015, 17.12.2015, 22.07.2016 and 03.11.2016. These meetings were held with the Service Engineer from Serveron and representatives from both the officials after repeated reminders/requests made by the Corporate Debtor. Email communications sent in this regard on various dates are annexed as Annexure - L (pages 185-194) copies of minutes of those meetings annexed as Annexure - M (pages 195-197). Repeated samplings carried out by the Corporate Debtor through different NABL accredited independent reputed at different times, do not match with the actual results of the NABL accredited independent labs. The table showing all these discrepancies as furnished while submitting reply to the Demand Notice, is annexed as Annexure - N. The Corporate Debtor brought out the deficiency in functioning of online DGA and informed the O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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