9911796707
TMI Blog2018 (12) TMI 1700X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed by the Operational Creditor entrusted by the Debtor Company as follows:- a. Job No. 2287 at Dighi Port, Berth 1 and 2 Rs. 3,91,90,499/- b. Job No. 2581 at NMPT site, Mangalore Rs. 53,25,072/- c. Job No.2936 at IFFCO, Kandla Port Rs. 87,48,801/- d. Job No. 3204 at Gopalpur Port Trust Rs. 2,21,32,164/- e. Job No. 3191 at SNA, Kandla site Rs. 80,93,737/- f. Job No- 3390 at Kandla Port Trust, Bandar Basin Rs. 70,11,248/- g. Job No. 3349 at Dighi Port, Berth 3 Rs. 5,57,17,474/- Total Rs. 14,62,18,995/- 2.1 The allegation of the Petitioner/Operational Creditor is that there were several defaults in making the payment by the Corporate Debtor which was reported to the Debtor Company vide E-mail dated 08.05.2012 and 26.12.2012. Although the Corporate Debtor assured of the payment but no payment was released. On account of the failure the Petitioner had issued Demand Notice on 10.05.2017 which was duly received by the Corporate Debtor. On receiving the said Demand Notice, the Corporate Debtor had responded vide a reply dated 22.05.2017. The contention of the Operational Creditor is that the alleged dispute raised by the Respondent were frivolous, false and on bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertained 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 Infrastructure Ltd. [Company Appeal (At) (Insolvency) No, 72 of 2017].. 3.1 The Second objection is that there is a suit filed by the Corporate Debtor on 16.05.2017 Summary Suit No. 448 of 2017, before the Hon'ble Bombay High Court pending between the parties, prior to the filing of the present Application dated 03.08.2017. The said Summary Suit is in the trial stage and issues have been framed by the Hon'ble Bombay High Court vide order dated 21 March, 2018. The objection is that there was existence of "dispute" hence the Petition is not maintainable. 3.2 Further stated that the Operational Creditor has also suppressed the fact that Dighi Port has claimed that it had made payments to the Operational Creditor directly, which forms part of the claims of the Operational Creditor in the present application. The Debt amount as claimed by the Operational Creditor is incorrect because the credit of the payment already received on behalf of the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loated 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 years hence assigned Piling work and Civil work required by the Port Authorities of India. While executing the said Work Orders/ Contracts, the Petitioner herein was wilfully negligent and acted in a mala fide manner to cause Project delays and consequent Project losses to the Respondent herein. The Work Orders assigned to the Petitioner were not completed within the time frame which had caused loss to the Port Authorities. As a consequence, the Port Authorities have taken action against the Company. The Petitioner had employed unexperienced as well as incompetent staff due to which the civil work executed was defective and caused damages. 3.6 The Port Authorities have forfeited Performance Bank Guarantee of the Company and imposed Liquidated Damages. Retention money has also been forfeited. The Running Account Bills have also not been cleared by the Port Authorities. All these losses are attributable to the Petitioner. To recover the damages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) because the Hon'ble Court has observed that the Suit was for damages and can be decided after proper hearing. FINDINGS 5. Heard the parties. Perused the records. The Respondent Company is specialized in Port related Civil Contract and Piling Work. Some times this Company used to outsource the Piling and Civil work to a Sub-Contractor, in the normal practice, the Petitioner was granted Sub-Contract work at few places by forwarding 7 different Work Orders. Due to non-execution and faulty execution, the Port Authorities have terminated the Contract and the Performance Bank Guarantee was invoked. The Earnest Money deposited was, therefore, forfeited by the Port Authorities as well as imposed 'Liquidated Damages'. Few evidences are on record affirming the forfeiture of Bank Guarantees. 5.1 Attention was drawn on a Letter of 10.06.2015 wherein Kandla Port Trust has informed the Chairman of DBM Geotechnics Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Petitioner, the Port Authorities have terminated the contract on 10.06.2015 by invoking the Performance Bank Guarantee of Rs. 4.62 Crores tendered by the Respondent Company. In addition, the Earnest Money of Rs. 23,58,392/- and Liquidated damages of Rs. 2.20 Crores have also been recovered. Over and above, the Company was blacklisted in the records of the Port Authorities. 5.6 In respect of rest of the Work Orders, due to the non-completion of work or execution of defective work, the Port Authorities have forfeited the Bank Guarantee as well as withheld the R.A. Bills. The Company had suffered heavily because of the irresponsible and bad conduct of the Petitioner. Keeping brevity in mind the rest of the Work Orders and the defaults committed are not reproduced in this Order. 6. In the light of the above factual matrix it transpires that due to non- execution or incomplete execution of Work Contract on the part of the Petitioner a controversy had cropped up among the Petitioner and the Respondent which is evident from various letters exchanged between the parties as well as the Termination Orders issued by the Port Authorities. To examine the position of law pertaining to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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