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TMI Blog2023 (7) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the business of manufacturing, commissioning/ installation and providing after sales service for lift manufactured by the Operational Creditor. Future Colonizer and Construction Pvt. Ltd. ("FCCPT") had approached the Operational Creditor for supply and installation of Kone elevators for its project site at Fashion Technology Park, Sector-90, Mohali, Punjab. An Agreement dated 05.02.2013 was entered with the Operational Creditor and FCCPT. (ii) Corporate Debtor Company wrote a letter dated 12.07.2013 acknowledging the dues of the Operational Creditor and assured that they shall pay a sum of Rs.71,10,000/- to the Operational Creditor. (iii) The Project was re-christened and a fresh contract was entered on 14.03.2015 between the Corporate Debtor and the Operational Creditor. The Corporate Debtor did not pay the dues of Operational Creditor. Three cheques issued to the Operational Creditor dated 23.06.2015 for Rs.10,30,000/-; cheque dated 15.08.2015 for Rs.36,05,000/-; and cheque dated 15.09.2015 for Rs.36,05,000/- were presented and the same were dishonoured. A letter dated 25.11.2015 was written by the Corporate Debtor, acknowledging sum of Rs.92,70,000/-. (iv) The Operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1167 of 2023 has been filed by 55 Allottees, seeking impleadment as Intervenors in the Appeal. Reply on behalf of Respondent No.3 has been filed in the Appeal. 5. We have heard Shri Mohit Chaudhary, learned Counsel for the Appellant; Shri Sandeep Thukral, learned Counsel appearing for Respondent No.1; Shri Shri Abhijeet Sinha, learned Counsel appearing for Respondent No.3; Shri Iswar Mohapatra, learned Counsel for IRP and Shri Surjeet Bhadu, learned Counsel appearing for Intervenors. 6. The learned Counsel for the Appellant, challenging the impugned order submits that Demand Notice issued by the Operational Creditor dated 15.10.2018 was not served on the Corporate Debtor. It is further submitted that Demand Notice issued by the Corporate Debtor was defective, it being not accompanied by any invoices. When demand is made on the basis of invoices, it was mandatory to annex the invoices and Demand Notice ought to have been issued in Form-4. The learned Counsel for the Appellant submits that assignment claim by Respondent No.3 is illegal. Assignment was made without any knowledge or notice to the Corporate Debtor. The Corporate Debtor was ready to make the balance payment due as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors of the Corporate Debtor have filed their claims. The Allottees also submitted that they had already filed an Application under Section 7 being CP(IB) No.210 of 2020 against the Corporate Debtor where claim of Rs.121.47 crores was made. It is submitted by learned Counsel for the Intervenors that Corporate Debtor is not a solvent company and in pursuance of publication issued by the IRP, claims have been filed by the Allottees. 10. We have considered the submissions of the learned Counsel for the parties and have perused the records. 11. We need to first consider the submissions of learned Counsel for the Appellant that Demand Notice dated 15.10.2018 was not served on the Corporate Debtor. In the Application under Section 9, the Operational Creditor has pleaded that Demand Notice dated 15.10.2018 was sent through speed post to Registered Office as well as Delhi Office of the Corporate Debtor Company. It was pleaded that Notice was delivered to the Corporate Debtor on his Registered Office, however, notice dispatched to Delhi Office was returned with remarks "Left Without Address". In paragraph 11 of the Application, following averments have been made: "11. That, the Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It is further relevant to notice that in the Settlement Agreement, which was entered between the Operational Creditor and the Corporate Debtor on 27.09.2021, the Settlement Agreement also referred to Demand Notice dated 15.10.2018 sent on 18.10.2018. The Settlement Agreement being signed by both Operational Creditor and Corporate Debtor, there is clear acknowledgement in the Agreement regarding sending of Demand Notice. We, thus, do not find any merit in submission of the learned Counsel for the Appellant that Demand Notice was not served on the Corporate Debtor. 14. The learned Counsel for the Appellant has attacked the Demand Notice on the ground that Demand Notice is defective. He submits that in Section 9 Application, the Agreement which was relied, was an Agreement dated 05.02.2013, which was an Agreement not entered with the Corporate Debtor, rather with another entity. It is further submitted that the Demand Notice in Form-3 was also defective, since no invoices were attached along with the Notice, whereas operational debt was claimed on the basis of invoices, hence, it was obligatory to annex invoices along with the Demand Notice. The learned Counsel for the Appellant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company and FCCPT, FCCPT abandoned the site and did not make the payment to the Applicant Company as aforesaid. It is submitted that vide letter dated 12.07.2013, the Corporate Debtor being the owner of the side acknowledged the dues of the Applicant Company and assured the Applicant Company that they shall pay a sum of Rs.72,10,000/- to the Applicant Company on or before 31.08.2013, copy of letter dated 12.07.2013 from Corporate Debtor to Applicant Company is filed as Annexure-VI. The Corporate Debtor Company also issued the cheques in favour of Applicant Company which were dishonoured. 7. That, thereafter, the aforesaid project was re-christened as Jade Business Park due to change of Directors of Corporate Debtor Company, who assured the Applicant Company that they shall liquidate the entire dues of Applicant Company and enter into a fresh contract with my clients on 14.03.2015 bearing reference number KEIPL/038/2015/0000004948057 for the supply, installation, testing and commissioning of 4 Nos. Kone 15 Passenger Machine Room less Gearless MonoSpace Elevators at the Project in Jade Business Park, Sector-90, Mohali, Punjab on the terms and conditions which were mutually agreed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 Demand Notice dated 15.10.2018 clearly mentions that debt of 92,70,000/- is due and payable on the basis of supply, installation, testing and commission Agreement dated 05.02.2013. The Demand Notice further referred to letter dated 25.11.2015 addressed by the Corporate Debtor confirming the debt of Rs.92,70,000/- payable by the Corporate Debtor. Thus, the basis of the Demand Notice was Supply Agreement and acknowledgement letter issued by the Corporate Debtor. No invoices were referred to in the Demand Notice. Hence, submission of the Appellant that Demand Notice should have been accompanied with the invoices cannot be accepted. 19. Now we come to the judgment of this Tribunal in Neeraj Jain (supra) relied by the learned Counsel for the Appellant. In the aforesaid case, one of the questions framed by this Tribunal was that whether it is the discretion of the Operational Creditor or the nature of the Operational Debt, that determines the issuance of notice in Form 3 or Form 4 under Sec 8 (1) of the Insolvency and Bankruptcy Code, 2016? This Tribunal answered the aforesaid question and laid down following in paragraph 43 to 46, which are to the following effect: "43. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves the generation of the invoice, then in that case, invoice raising the demand may be sent to the Corporate Debtor demanding the invoice amount. In such a situation, the Operational Creditor has to issue the demand notice in Form 4 along with the invoice." 20. The present is a case where the Demand Notice issued by the Operational Creditor on the basis of supply and installation Agreement and the acknowledgement letter issued by the Corporate Debtor. In the facts of the present case, Notice having not been issued in Form-4, cannot be faulted with. There can be no defect and infirmity in Demand Notice issued in Form-3 in the facts of the present case. Thus, the submission of learned Counsel for the Appellant that Demand Notice is defective, cannot be accepted. 21. Now we come to the question as to whether the operational debt was due and not paid by the Corporate Debtor? The Demand Notice was issued for an amount of Rs.92,70,000/- for which amount Section 9 Application was filed. The Corporate Debtor and Operational Creditor entered into a Settlement Agreement on 27.09.2021, which Agreement was also brought on the record by IA No.301 of 2022. The Settlement Agreement between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both parties against the SITC agreement referred above and that this settlement agreement is irrevocable and shall not be reopened are questioned by the parties in any manner whatsoever to the extent of the amount settled. Since considerable time has lapsed, and therefore any part found missing or damaged while installation and commissioning of the aforesaid elevators shall be charged as actual, and the contract value shall be adjusted to the extent of increase in cost towards the balance work for which payment will be released on raising of invoice. All other terms and conditions shall remain same as per contract bearing reference number KEIPL/038/2015/0000004948057 dated 14.03.2015. KONE undertakes to withdraw all pending case after the final payment is made (whether disclosed or undisclosed in present settlement agreement) against COPL/ it's officers, in terms of the present settlement." 22. It is further relevant to notice that although Corporate Debtor agreed to pay sum of Rs.60,00,000/-, but an amount of only Rs.25 lakhs was paid and the second installment of Rs.20 lakhs to be paid on or before 15.12.2021 and third installment of Rs.15 lakhs on or before 15.03.2022 were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Appellant has relied on judgments of the Hon'ble Supreme Court in Khardah Company Ltd. vs. Raymon & Co (India) Pvt. Ltd. - AIR (1962) SC 1810 and M/S. N.N. Global Mercantile Pvt. Ltd. vs. Indo Unique Flame Ltd. & Ors. in Civil Appeal No(s). 3802-3803 of 2020. 25. Challenge in the present appeal is to the admission order passed by the Adjudicating Authority in Section 9 Application filed by the Operational Creditor. The Assignment Deed in favour of Respondent No.3 on 03.02.2023 was not the subject matter of any issue between the parties in Section 9 Application. On the basis of the Assignment, Respondent No.3 has only prayed to be impleaded in this Appeal to support the impugned order. Respondent No.3 was impleaded in this Appeal by order dated 20.03.2023. The learned Counsel for Respondent No.3 placed the order of Hon'ble Supreme Court dated 08.05.2023 passed in Civil Appeal No.3181 of 2023 in which Appeal order dated 20.03.2023 passed by this Tribunal, impleading the Respondent was challenged. The Hon'ble Supreme Court on 08.05.2023 dismissed the Appeal by following order: "We do not find any good ground and reason to interfere with the impugned judgment, which in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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