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TMI Blog2020 (1) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... y from 2015. They have also involved NTPC to pressurize to the Corporate Debtor to release the said payment - The Operational Creditor has not completed the work within the stipulated contract schedule and failed to fulfill their contractual obligations leading to disputes between the parties - There is exchange of legal notice and its reply in the month of March, 2018 where the disputed issues are raised in respect of recovery of debts and claims. The debt in question is disputed and the dispute was raised prior to issuance of demand notice under Section 8 of the Code. Accordingly, the Adjudicating Authority has rightly rejected the Application - appeal dismissed. - Company Appeal (AT) (Insolvency) No.737 of 2019 - - - Dated:- 13-12-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding technical and service solutions for mining and construction industries etc. 3. The Respondent (Corporate Debtor before the Adjudicating Authority) is an EPC Contractor and involved in the manufacturing of ash handing systems on turnkey basis. 4. The Appellant has also raised 73 invoices on the Respondent for a total sum of ₹ 34,72,35,271/-. Out of these 73 invoices, 16 invoices remain unpaid. The 16 unpaid invoices were raised between 4th September, 2014 and 22nd November, 2017. The Appellant is continuously chasing payment and also NTPC the Employer was involved, for whom both the parties were working for a particular contract in terms of Deed of Joint Undertaking dated 12th November, 2010 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments. The value of such Bank Guarantee shall be equal to quarter percent (0.25%) of the total contract price of the Contract awarded by the NTPC to the Contractor and it shall be guarantee towards the faithful performance/compliance of this Deed of Joint Undertaking in accordance with the terms and conditions specified herein. The Bank Guarantee shall be unconditional, irrevocable and valid for entire period of Contract, i.e. till ninety (90) days beyond the end of the Defect Liability period of the Coal Handling Plant; Package under the Contract. In case of delay in completion of the defect liability period, the validity of this bank Guarantee shall be extended by the period of such delay. The Bank Guarantee amount shall be promptly paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in spite of repeated requests and follow-ups etc. 8. The Respondent has also elaborately submitted that there is a net recovery amount of ₹ 5,01,67,062.05/-. They have also submitted that the Terms and Procedures of Payment, Functional Guarantees and Performance Bank Guarantee are elaborately defined in the Deed of Joint Undertaking executed on 12th November, 2010. 9. The Respondent has reiterated the various averments made in the Appeal as mentioned supra and submitted that the Adjudicating Authority has rejected the said Application on the ground of existence of dispute prior to issuance of demand notice under Section 8. 10. The various submissions reflects that Appellant is chasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding against any resolution professional proposed under sub-section (4), if any; (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if (a) The application made under sub-section (2) is incomplete; (b) There has been [payment] of the unpaid operational debt; (c) The creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) Notice of dispute has been received by the operational creditor or there is a recorded of dispute in the information utility; or (e) Any disciplinary proceeding is pending against any proposed resolution professional: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the dispute except to 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 . 13. Heard learned counsel for both the parties. We have carefully perused the pleadings of both the parties and extant provisions of the Code and the law on the issue. 14. We have the following observation on the present issue: a) The Appellant is no doubt chasing payment continuously from 2015. They have also involved NTPC to pressurize to the Corporate Debtor to release the said payment. b) The Operational Creditor has not completed the work within the stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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