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TMI Blog2019 (9) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mukhopadhaya, Chairperson, Mr A. I. S. Cheema, Member (Judicial) And Mr Kanthi Narahari, Member (Technical) For The Appellant : Mr. Gautam Ankhad, Mr. Murtaza Kachwalla, Mr. Ashdin Chivalwala, Mr. B. Anjaneyulu, Ms. AmritaSarkar, Ms. Nimita Kaul and Ms. Ekta Bhasin, Advocates For The Respondents : Mr. Aditya, Advocate JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. 1. The present Appeal challenges the impugned order dated 20th December, 2018 passed by the Adjudicating Authority, Mumbai rejecting the petition filed by Appellant under section 9 of the Insolvency and Bankruptcy Code by the Company Appeal (AT) (Insolvency)No. 261 of 2019 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not pay you last week due to cash flow problem.. But We are trying to pay you this week.. Email dated 25th December, 2014: We are aware with the situation of Agardanda as you have not received the committed payment from DPL. We wish to inform you we trying our best to release the part payment to you . 5. It is stated that repeated reminders were sent by the Appellant to the Respondent on 8th January, 2013, 8th April, 2013, 18th June, 2013 and 8th July 2013. There was no denial of liability nor did the Respondent raise any dispute on quality or quantity. 6. It is stated that as no payment was forthcoming 13 demand notices (Form 3) were issued to the Respondent on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts from time to time; c. Issued work completion certificates (See Ground EE); d. Deducted 1% TDS on the amounts billed by the Appellant (Ground AA); e. Gave additional contracts to the Appellant every year from time to time; f. Has never communicated any grievances contemporaneously until the issuance of the demand notices (Ground CC KK). 10. The case of the Respondent is that it awarded the sub-contract mainly for the labour works (for pilling work, deck structure work, etc.) to the Appellant, on back to back basis. The terms of the Principal Contracts, inter alia including specifications, time frames, penalties and liquidated damages were applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by it for the reasons attributable to the Appellant; the Appellant was not forthcoming for making good the losses despite various request and reminders; therefore, the Respondent contemplated filing a suit before Bombay High Court and thus instructed their solicitors. The various emails including emails dated 03.04.2017, 05.05.2017 and 9.05.2017 exchanged in this regards which are prior to issuance of Demand Notice dated 10.05.2017. 16. Therefore, it is stated, it can be concluded that though the Respondent filed the Summary suit before the Hon ble Bombay High Court on 16.05.2017, the preparation for the legal suit was commenced much prior to issuance of Demand Notices and the disputes were in existence much prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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