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TMI Blog2017 (11) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... cant : Rakesh Wadhwa and Manish Jain, Advs For The Respondent : Sanjib Kumar Mohanty and P.S. Chandralekha, Advs. JUDGMENT DEEPA KRISHAN MEMBER (TECHNICAL) The Operational Creditor , M/s Dolphin Offshore Enterprises (India) Ltd. has filed the instant application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer for initiating the Corporate Insolvency Resolution Process against the Corporate Debtor , M/s Instrumentation Limited (for brevity the Corporate Debtor ). It is appropriate to mention that the Operational Creditor is a Public Limited Company having its registered office at 1001, Raheja Centre, 214, Nariman Point, Mumbai-400021 and bearing identification No. L11101MH1979PLC021302. The Corporate Debtor is a Public Limited Company and is a Government of India enterprise with CIN No. U29299RJ1964GO1001174. It was incorporated on 31.03. 1964. The registered office is located at Jhalawar Road, Kota, Rajasthan 3224005. 2. It is stated in the application that the Corporate Debtor was awarded a contract by ONGC for executing structural modification work at 27 unmanned platforms in Maharashtra for developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid third amendment LOI dated 19.04.2011 is marked as Annexure-VIII. It is stated that the Applicant completed all the works assigned to it by the Corporate Debtor on behalf of ONGC within time. The completion certificate from ONGC for N-4 was issued on 17.12.2010, for N-6 was issued on 15.12.2010 and for N-9 was issued on 11.03.2011. In pursuance of the jobs done and completed, the Applicant raised invoices for which only part payments were received. It is further submitted that there was no detailed subcontract agreement signed between the Applicant and the Corporate Debtor. The entire contract issued to the Corporate Debtor by ONGC was fully subcontracted to the Applicants and it was agreed that all works as well as the terms and conditions applicable qua the contract between ONGC and the Respondent No. 1 were taken to be the terms and conditions applicable on the applications vis-a-vis the respondent No. 1/ONGC. 3. The applicant filed an application under section 9 of the Insolvency and Bankruptcy Code (hereinafter referred to as Code) before this Tribunal. In part-4 of the application, the total amount of the debt claimed is as follows: - ₹ 4.90 crores as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date Annexure No. 1 05.07.2013 IX 2 01.10.2013 X 3 29.01.2014 XI 4 13.02.2014 XII 4. Initially, the Operational Creditor had not named any Interim Insolvency Resolution Professional in part-III of the application. Subsequently, vide application filed on 04.08.2017, the name of Advocate Ashok Kumar Juneja has been proposed as Interim Resolution Professional and written communication from him has been filed in Form-2. It is seen that Advocate Ashok Kumar Juneja is an Insolvency Professional registered with ICSI Insolvency Professional Agency having registration number IBBI/IPA-002/IP-N00117/2017-18/10286, address- 1302, Vijaya Building, 17, Barakhamba Road, Connaught Place, New Delhi-110001, Email- [email protected]. A copy of certificate of registration issued by IBBI on 02.06.2017 to Shri Ashok k Juneja, authorizing him to act as an Insolvency Professional has also been annexed. 5. It is seen that deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant company to the respondent company. 8. In the said order, it is stated that the respondent company had been declared sick by BIFR effective 01.01.1994 and the rehabilitation scheme as modified on 25.02.2010 by BIFR is presently under implementation. Hon ble High Court has recorded in the Order that I am of the considered view that for reason of the undisputed fact that the respondent company is a sick company under the Act of 1985 in respect of which a scheme of rehabilitation is under implementation, the provisions of Section 22 of the Act of 1985 would be a bar to entertaining the winding up petition. Consequently, the winding up petition is dismissed. 9. Learned Counsel for the Corporate Debtor has stated in the reply filed on 17.07.2017 that the ONGC had awarded the contract to corporate debtor on back to back basis for a sum of ₹ 143,89,66,075/-. After completion of the job, ONGC released payment of ₹ 132,00,26,971/- only to the Corporate Debtor. It is stated that the respondent company had released substantial amount to the petitioner from time to time and as on March, 2014 only an amount of ₹ 490 lakhs remains to be paid as admitted by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the matter in the interest of the applicant for quashing of the demand. But till the matter is decided finally the demand stands and the applicant is liable to pay the amount of ₹ 7,58,23,371/- to the Corporate Debtor as against its dues of ₹ 490 Lakh. The Corporate Debtor has asked the applicant to deposit the difference amount so that it can be paid to the Sales Tax Department. It is stated that, therefore, at present nothing is due to be paid to the applicant, rather applicant is liable to pay the difference amount to the respondent company and therefore the petition is not maintainable. 11. It is also stated in the reply that there is neither any written or oral agreement concerning payment of interest nor any commitment by the respondent company to make payment of interest and therefore the averments/claim of the applicant company for payment of interest is wholly without any basis. 12. Learned Counsel for the Corporate Debtor has also drawn our attention to Para 1.10 of the reply, wherein, it is stated that the Respondent Company held meetings with the applicant Company at its Kota Corporate Office on 11.05.2017 and 21.06.2017 to settle the matter once for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so the Court does not need to be satisfied that the defence is likely to succeed. The court does not at this stage examine the merits of the dispute except the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 15. In the present matter, the corporate debtor has raised a dispute about the disputed pending tax liability in respect of the work contract which is evident from the MoU, dated 16.06.2017 in which the applicant had itself tried to settle the matter in respect of pending tax liability in a tripartite meeting. It is therefore seen that the respondent had earlier raised dispute and brought to the notice of applicant through various correspondences revealing existence of dispute between the parties much before the receipt of the demand notice issued in the present case under section 8 of the Code. 16. Hence, the amount of claim raised by the operation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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