9911796707
TMI Blog2018 (12) TMI 1700X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Petition admitted - moratorium declared. - Shri M.K. Shrawal Member (Judicial) For The Petitioner (s) : Mr. Shyam Kapadia, Counsel a/w, Murtaza Kachwala, a/w. And L. Sachdev, i/b. HSA Advocates For The Respondent (s) : 1 1s. Yogi loshi, a/w. And Prakhar Maheshwari, i/b. Khaitan Co. ORDER Per M.K. Shrawat, Member (Judicial). 1. The Petitioner Mr. Battula Anjaneyulu is the Proprietor of M/s. B. Anjaneyulu and in the capacity of 'Operational Creditor' submitted this Petition on 03.08.2017 in respect of an Operational Debt of ₹ 14,62,18,995/- outstanding against the alleged 'Operational Debtor' M/s. DBM Geotechnics Constructions Pvt. Ltd. 2. The Operational Creditor has stated that the Corporate Debtor and the Operational Creditor executed various work orders for carrying out different kinds of work such as marine piling, labour supply, anchor-wall chipping, cage fabrication at various sites. There were 7 Work Orders, as claimed by the Operational Creditor entrusted by the Debtor Company as follows:- a. Job No. 2287 at Dighi Port, Berth 1 and 2 ₹ 3,91,90,499/- b. Job No. 2581 at NMPT site, Mangalore ₹ 53,25,072/- c. Job No.2936 at IFFCO, Kandla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 raised by the DBM Geotechnics (Respondent) issued for execution and served upon M/s. B. Anjaneyulu (Proprietor/Petitioner). 2.4 Attention was drawn on a Letter dated 10.05.2017 written by the Petitioner and addressed to the Debtor for demanding unpaid Debt amount by giving particulars of Operational Debt. Correspondence in this regard is also on record. Also placed on record Company Master Data as per the Ministry of Corporate Affairs to establish that charge was created on several dates, however, the Company was categorized as Active . OBJECTIONS OF CORPORATE DEBTOR 3. One of the preliminary legal objection of the Respondent is that the Petition under consideration is not maintainable on the ground that there were several Work Orders for different amounts, hence separate 'cause of action' in respect of each Work Order had created hence separate petitions were required to be filed. It is pleaded that undisputedly the impugned claim of Debt pertained to 7 Work Orders as admitted by the Petitioner. In support of this preliminary objection reliance was placed on an Order of Hon'ble NCLAT in the case of International Road Dynamics South Asia (P.) Ltd. v. Reliance Infrast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the Piling and thereafter complete the Civil work. It is alleged that the Petitioner wilfully delayed and deployed inexperienced and untrained workers which resulted in a situation where the Port Authorities (i.e. Tenderers) terminated the Contract awarded to the Respondent, invoked the Respondent's Performance Bank Guarantees, Earnest Money Deposits and imposed the Contract related Liquidated Damages on the Respondent. It is further argued that the Respondent was even suffered 'blacklisting' for 5 years on this account. The Respondent, therefore, also sought to recover all those costs and damages from the Petitioner who alone was responsible for the mess that was created at the Port site due to the inferior work done. 3.5 The Debtor Company was incorporated in the year 1990 and specialized in the creation of Port Infrastructure therefore carried out execution of several projects across the country under Tender Contracts floated by Government and awarded to the Company through Global Tenders. The alleged Creditor is an individual who had been assigned the work as Sub-Contractor by the Company. Since the Petitioner had worked for the Company in the past several year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 01st December, 2016 and if the Petition is filed within three years then cannot be held to be 'barred by limitation'. Another case law in support relied upon is Brijesh Kumar Agarwal v. Punjab National Bank Anr [Company Appeal (AT) (Insolvency) No. 312 of 2018].. 4.1 On the issue of dispute in existence it is pleaded that the Debtor Company had admitted the Debt during various correspondence. The Debtor Company had deducted 1% TDS. Had there been a dispute, the TDS would not have been deducted. Moreover, part-payment had also been made, therefore, the work executed by the Petitioner was satisfactory. In one of the E-mail of 08.05.2012 and 26.12.2014, the Debtor Company had expressed its financial difficulty. But there was no question raised about the work completed by the Petitioner, which means the Debt amount was admitted. Even the Suit filed in the Hon'ble High Court was nothing but an after-thought when the Debtor Company came to know about the legal action taken by the Petitioner. The said Summary Suit has also been transferred to the List of Long Causes by an Order of 10.10.2017 (Summons for Judgment No. 71 of 2017 in Commercial Summary Suit No. 448 of 2017) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner but he had failed to complete the task. On account of recurring of delays, the Piling work got delayed due to which liquidated damages of ₹ 1.37 Crores was imposed. 5.4 In respect of Job No. 3065 of West Quay Multiport Pvt. Ltd. - ABG Coastal Pvt. Ltd., the Work Order was dated 03.04.2014 for Piling and Civil Work agreed to be completed within 6 months with effect from 01.06.2014 to 30.11.2014. Due to the negligence of the Petitioner, the Performance Guarantee of ₹ 6.75 Crores tendered by the Debtor Company was encashed by the Port Authorities on 18.08.2016. In addition, the Running Account Bill for a value of ₹ 3.97 Crores was also withheld. The Company had issued several E-mails along with photographs but the Petitioner has not taken any steps to cure the damages. 5.5 In respect of Job No. 3191 SNK Kandla Port Trust the Work Order was issued on 28.09.2012 but because of the bad conduct of the Petitioner, the Port Authorities have terminated the contract on 10.06.2015 by invoking the Performance Bank Guarantee of ₹ 4.62 Crores tendered by the Respondent Company. In addition, the Earnest Money of ₹ 23,58,392/- and Liquidated damages of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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