9911796707
TMI Blog2023 (3) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. 2. The facts in brief, are that AWHO had awarded the work of construction of Twin Tower residential accommodation at Greater Noida, to the respondent vide CA No. AWHO/G.Noida/16/2010 dated 11.03.2011(hereinafter referred to as Project). AWHO vide its Letter no. E/03002/CA16-2010/GND-PH-IV/597/AWHO dated 16.11.2011 approved 2022/DHC/005579 ARB.P. 790/2020 & connected matter Page 3 of 20 the petitioner as "Specialist Firm" for carrying out electrification works in the said Project. 3. The respondent had awarded the Work Order for electrical works in the said Project exclusively to the petitioner vide Letter No. SPCL/AWHO/WO_ELE/08 dated 19.12.2011. The entire electrical work was solely executed by the Petitioner. The mechanism for executing the Work Order agreed between the parties was that the petitioner shall issue the running account bills (RA Bills) in respect of the work done which would be approved and confirmed by the respondent on the basis of joint inspection conducted by the AWHO and the Architect. Thereafter, the petitioner shall generate the Tax invoices after accepting the verification and certification, which the respondent shall receive and accept by m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle the matter. However, officials of the respondent were not willing to settle the matter and have been making fictitious and self-contradictory statements. 10. The petitioner filed the petition under Section 9 of the Act on 05.10.2020 wherein again the respondent had asserted that they are desirous of amicable resolution of disputes but again adopted an adamant and illogical approach and all the efforts to amicable settlement failed. 11. The petitioner has asserted that a sum of Rs. 2,58,03,143/- is to be recovered from the respondent. In terms of Clause 13 of the Work Order dated 19.12.2011, the resolution of disputes is through arbitration. Hence, the present petition has been filed under Section 11 of the Act for appointment of the Arbitrator. A petition under Section 9 of the Act has also been filed for attachment of amount of Rs. 2,58,03,143/- lying in the hands of AWHO who is indebted to pay the amount in order to enable the respondent to release the amount in favour of the petitioner. 12. The respondent in its Reply has taken preliminary objection that the matter has already been submitted before the NCLT, Mumbai under Section 9 of the Insolvency and Bankruptcy Code, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d RA Bills No. 1 to 39 had been duly paid by the respondent on back-to-back basis. 18. It is explained that Work Order dated 19.12.2011 was amended by the respondent on 16.10.2017 due to introduction of GST and due to change in tax regime in 2017, which was accepted by the petitioner but all other terms and conditions as stated in the Work Order dated 19.12.2011 remained the same. The respondent had made payments from time to time aggregating to Rs.5,12,02,735/- towards the bills raised under the amended Work Order in respect of RA Bill No. 40 dated 29.10.2018 and the corresponding Tax invoices dated 30.10.2018 for a sum of Rs. 37,44,229/-The BOQ along with the amended Work Order clearly mentioned that up to June, 2017, an amount of Rs. 5,21,13,743/- had been paid. It is claimed that after making all the adjustments of deductions and recovery, balance payment of Rs. 2.50 lakhs was made to the petitioner. Thereafter, no further payment remains to be paid to the petitioner. 19. The petitioner was required to approach the respondent for reconciliation of accounts but the petitioner till date has not submitted the Final Bill and any reference to it in the present petition, is denied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt petition that the amounts have been claimed by the petitioner wrongly and the same are not due and payable by the respondent. 27. In Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (2018) 1 Supreme Court Cases 353,it was explained that under Section 9 (5) (ii) (d) of Insolvency and Bankruptcy Code (IBC), the adjudicating authority must reject an application if a notice of dispute is received by the Operational Creditor or there is record of the dispute in the information utility as state under Section 9 (5) (ii) (d). If it is brought to the notice of the adjudicator that there is existence of a dispute or that a suit or arbitration proceedings relating to the dispute is pending, the application has to be rejected. It has categorically been laid down that IBC is not intended to be a substitute to recovery forum and whenever there is an existence of real disputes, IBC provisions cannot be invoked. 28. In the present case, though a proceeding may have been initiated by the petitioner before the NCLT asserting that there is an admitted debt as has been pointed out by the respondent, but a mere assertion would not make it into an admitted liability especiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (2021) 3 Supreme Court Cases 241. 33. In Union of India and Others Vs. Cipla Limited and Another (2017) 5SCC 262, the Supreme Court explained that a classic example of Forum Shopping is when a litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. Examples were given of cases pertaining to child custody, successive bail applications and of filing repeat applications with a slight change in the prayer clause of the petition. The functional test to determine Forum Shopping was explained as whether there is any functional similarity in the proceedings between one Court and another or whether there is some sort of subterfuge on the part of a litigant. 34. In the present case, the scope of enquiry in the proceedings before the NCLT and before the Arbitrator is absolutely distinct. Merely because the petitioner approached NCLT before seeking appointment of Arbitration, it cannot be said that he was indulging in Forum Shopping. C. Notice of Invocation under Section 21 of the Act: 35. The next objection taken on behalf of the respondent is that there is no valid Notice of Invocation under Section 21 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the mutual discussions and referral to Regional Head essentially pertained to difference/dispute in regard to interpretation of clauses, technical specifications, etc. The dispute between the parties arose in regard to the payments and not in respect of any technical specifications. Moreover, petitioner had also approached MSME Samadhan for resolution of disputes. Therefore, it cannot be said that the procedure as prescribed under Clause 13 of terms of Contract was not followed by the petitioner. 39. In Nirman Sindia Vs. Indal Electromelts Ltd., Coimbatore and others AIR 1999 Ker 440, a detailed procedure for resolution of disputes in regard to payments was envisaged whereby the disputes were first required to be settled through Superintendent Engineer and if not satisfied with the decision of the Engineer, it was required to be referred to the adjudicator. Non-referral of disputes in regard to the disputes pertaining to payment, execution, work, etc. where it could have been settled without having the need to go to arbitration, was considered as an obstruction by the petitioner in not following the procedure as envisaged in the Contract and the request for arbitration was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by BEPL to pressurize SPCPL to pay an alleged debt which is not due or payable by SPCPL to pay an alleged debt which is not due or payable by SPCPL, either contractually or legally or otherwise. No action under the Code is therefore maintainable against SPCPL, as alleged or at all. ..... 9. Without prejudice to the above, the alleged claim under the Demand Notice is disputed and denied and the same is not due or payable by SPCPL on the following grounds, each of which is without prejudice and in the alternative to the other. 10. SPCPL states that the Demand Notice has not been issued in accordance with the provisions of the Code and the rules made thereunder. Therefore, SPCPL disputes the validity and propriety of the Demand Notice and denies any liability towards BEPL. .... 13. In the light of the above facts and circumstances, we, SPCPL hereby call upon you (BEPL) to forthwith withdraw the Demand Notice and confirm the same to us/SPCPL. In the event you initiate any legal action against SPCL, as threatened or otherwise, the same will be defended by SPCPL, at your risk as to cost and consequences. 42. In Alupro Building Systems Pvt. Ltd. Vs. Ozone Overseas Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o notice about the intention of approaching the arbitration which was sufficiently conveyed through Demand Notice and the reply of the respondent. 46. It is significant to refer to the Order dated 21.10.2020 in OMP(I) (COMM) 324/2020 under Section 9 wherein it was submitted on behalf of the respondent that though the parties were unable to arrive at any settlement, it would be appropriate if the pending disputes are referred to arbitration subject to the petitioner withdrawing proceedings from other forums. Respondent no. 1 further agreed to maintain a balance of Rs. 99,87, 763 towards the amount claimed by the petitioner in its Demand Notice dated 19.04.2019. 47. Even if for the sake of arguments, it is accepted that the Demand Notice failed to meet the requisite requirements of Section 21 of the Act, it cannot be overlooked that in the proceedings under Section 9 vide Order dated 21.10.2020, the respondent had agreed to referral of the disputes between the parties to arbitration. The petition under Section 9 of the Act and the willingness of the respondent to resort to arbitration for resolution of disputes is sufficient compliance of Section 21 of the Act. 48. The objection n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective objections before the Arbitrator. 54. The fees of the learned Arbitrator would be fixed in accordance with the IV Schedule to A&C Act, 1996 or as consented by the parties. 55. This is subject to the Arbitrator making necessary disclosure as under Section 12(1) of A&C Act, 1996 and not being ineligible under Section 12(5) of the A&C Act, 1996. 56. Accordingly, petition under Section 11 of the Act is allowed. 57. Learned counsels for the parties are directed to contact the learned Arbitrator within one week of being communicated a copy of this Order to them by the Registry of this Court. The copy of this order be also sent to the learned Arbitrator for information. Petition No.O.M.P. (I) (COMM) NO. 324 OF 2020 Under Section 9 of the Act: 58. The respondent in his statement under 21.10.2020 had agreed to maintain a balance of Rs.99,87,760 which was claimed in Demand Notice dated 19.04.2019. Considering the disputes, the respondent is directed to maintain a balance of Rs. 99,87,760 in its account till the adjudication of the disputes, though either party may seek modification of this Order by moving an appropriate application before the learned Arbitrator. Accordingly, p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
