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TMI Blog2018 (8) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... etition is filed on behalf of Operational Creditor Equipment Conductors Cables Limited, under Section 9 of Insolvency Bankruptcy Code, 2016, r/w Rule 6 of Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The averments of the Petition filed in Form-1 prescribed pro forma are as follows :- (1) Petitioner is Operational Creditor. Transmission Corporation of Andhra Pradesh Limited is the Corporate Debtor. The Registered office of the Corporate Debtor is furnished in pro forma as follows:- Transmission Corporation of Andhra Pradesh Limited Vidyut Soudha, Gunadala, Eluru Road, Vijaywada, Andhra Pradesh - 520004 (2) The Authorized share capital is ₹ 15,00,00,00,000.00 and paid-up share capital is ₹ 454,43,96,950.00. The Corporate Debtor was registered on 29.12.1998 holding Identification Number U31909AP1998SGC030805. (3) The total amount of ₹ 3,79,61,269/- up to 31.05.2016 as per the claim petition is due to Operational Creditor as stated in the Petition. (4) It is averred in the Petition that Operational Creditor vide claim Petition dated 20.07.2001, claimed an amount of ₹ 40,25,648/- up to 30.06.2001 (for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee order to the extent of the amount covered by Sl. No. 26-45. (8) Pursuant to above, a fresh calculation memo was filed by Operational Creditor in EP 33/2016 before Hon ble II ACJ, CCC, Hyderabad which amounted to ₹ 3,79,61,269/- (up to 31.05.2016) dated 13.12.2016 as EP claim amount for 26-45 bills and further passed fresh Garnishee order dated 28.12.2016, future claim wef 01.06.2016 on monthly compound basis, till realisation will be extra as per the provisions of Interest Act, 1993. (9) Aggrieved by the above said Order, Corporate Debtor preferred SLP (C) No. 187/2017 before the Hon ble Supreme Court. The Hon ble Supreme Court vide order dated 13.01.2017 vacated the orders passed by the Execution Court in view of preliminary issue to be decided by Hon ble ADJ, Chandigarh and the same to be complied by the Corporate Debtor as per Section 19 of MSMED Act, 2006 and has further held the Execution Petition will revive only after adjudication of the controversy by the District Judge. (10) Further to Arbitral Counsil vide Interim Order dated 06.09.2017 dismissed the operational Creditor s Application by stating that the claim amount on account of interest is a recurring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter to the Hon ble High Court of Punjab and Haryana. The case was dismissed on 11.10.2017 by imposing costs of ₹ 1,00,000/-. (5) Aggrieved by the order dated 11.10.2017, the Operational Creditor preferred special leave to Appeal (c) Nos. 30799/2017 before the Hon ble Apex Court and the Hon ble Apex Court disposed of the said SLP with direction to District Court at Chandigarh to dispose the Arbitration case No. 580 of 2010 within ten weeks keeping all the contentions including the contention of quantum of amount and interest thereon. (6) It is also contended that the Operational Creditor filed EP No.33 of 2016 before Hon ble Second Additional Chief Judge City Civil Court at Hyderabad for enforcement of Award dated 21.06.2010 including invoices mentioned at Sl. Nos. 1 to 25 which was held as barred by law of limitation by the Council. It is contended that attachment orders dated 30.06.2016 passed by Second Additional Chief Judge Court at Hyderabad in respect of the total claim amount 1 to 45 bills by wrongly calculating the same knowing full well that the claim Nos 1 to 25 were held as barred by law of limitation by the Council. (7) Aggrieved by the said order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgment of Hon ble NCLAT dated 29.08.2017 in the matter of Annapurna Infrastructure Pvt. Ltd. v. SORIL Infra Resources Ltd. which held that pendency of execution proceedings is no bar for initiating IBC proceedings and since the debt and default stands unambiguously admitted, the Petition may be allowed.. 5. The Operational Creditor filed this Petition under Section 9 of I B Code in the background of a prolonged litigation between it and the Corporate Debtor started in and around the year 2010. The parties even approached the Hon ble Apex Court on some grounds in the past. The dispute is centred around the quantum of liability. The dispute is still existing which is evident from the records placed. In this background the Tribunal has to see whether the Petition is liable to be admitted or not. 6. The claim of the Operational Creditor said to have been payable by the Corporate Debtor is ₹ 3,79,61,269/- as on 31.05.2016 in respect of bills raised by the Operational creditor against the Corporate Debtor bearing Nos. 26 to 45. According to the Petitioner, this is the amount said to have been committed default by the Corporate Debtor. The case of Petitioner that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition filed by Operational creditor can be admitted. It also provides the grounds on which petition is liable to be rejected. Section 9 (5) (ii) (d) provides for rejection of the Petition, if notice of dispute has been received by the Operational Creditor. 13. It is not in dispute that Corporate Debtor has served notice of dispute on Operational creditor in response to the Demand Notice issued on behalf of Operational Creditor. In this connection, learned Counsel for Corporate Debtor relied on the decision of Apex Court in Mobilox Innovations Private Limited versus Kirusa Software Private Limited which held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the Application. 14. So, the next question calls for consideration whether there exist a dispute when notice of Demand was issued to the Corporate Debtor. The contention of the learned Senior Counsel for Corporate Debtor that serious dispute regarding quantum of liability was pending for adjudication. The contention of the ld. Senior Counsel that Operational Creditor is fully aware of the matter being pending before the Hon ble District Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor preferred Appeal to the Hon ble Punjab Haryana High Court and said Appeal was dismissed imposing costs on Operational Creditor at ₹ 2 lakhs. 18. Again Operational Creditor preferred SLP to Hon ble Apex Court, wherein Hon ble Apex Court while disposing SLP No. 5063 of 2018 directed District Court to dispose the matter in terms of Award. Thus, Hon ble District Court at Chandigarh decided the liability at ₹ 24,50,046/-. 19. However, the present Petition is filed by Operational Creditor ignoring the order passed in the past. Therefore, the subject claim is in dispute and therefore Petition is liable to be dismissed. It is the contention of the Corporate Debtor that only ₹ 7 lakhs is due since 75% of the amount awarded i.e. ₹ 24,50,046/- was already deposited and withdrawn by Operational Creditor. The liability according to the Corporate Debtor is ₹ 7 lakhs whereas the claim is filed for ₹ 3,79,61,269/-. 20. I have seen the order passed by the Hon ble High Court of Punjab and Haryana as well as Hon ble Apex Court including orders passed by Hon ble ADJ, Chandigarh. Thus, it is clear dispute is existing with regard to quantum o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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