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TMI Blog2020 (1) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... d 24.3.2018 indicates that there existed substantial dispute between the parties with regard to fulfilment of obligations under the Agreement entered into on 15.09.2014. This Adjudicating Authority is of the view that there was pre-existing dispute between the parties and, accordingly, deems it fit not to admit the present application in terms of Section 9(5)(ii)(d) of IB Code, 2016 - Application dismissed. - CP(IB) NO. 730/9/HDB/2018 - - - Dated:- 17-9-2019 - K. Anantha Padmanabha Swamy, Judicial Member And Dr. Binod Kumar Sinha, Technical Member Nitish Bandary, Adv. for the Petitioner. Challa Gunaranjan, M. Sridhar and D.V.A.S. Ravi Prasad, Advs. for the Respondent. ORDER K. Anantha Padmanabha Swamy, Under consideration is a Company Petition bearing CP (IB) No.730/9/HDB/2018 filed by M/s. Duane Morris selvam LLP (in short, Petitioner/Operational Creditor) against M/s. Simhapuri Energy Limited (in short, Respondent/Corporate Debtor) under section 9 of the Insolvency and Bankruptcy Code, 2016 (in short IB Code) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A copy of the profile of the Petitioner obtained from Accounting and Corporate Regulatory Authority. A copy of the invoice dated 09.12.2015 for USD 150,221.13 and a copy of the time entries showing the total incurred billable time for the matter. Correspondence exchanged between the Operational Creditor and Corporate Debtor in respect of the outstanding invoice. Demand Notice dated 27.03.2018 sent to the Corporate Debtor. Reply dated 11.04.2018 issued by the Corporate Debtor to the Demand Notice dated 27.03.2018. The Copy of Balance sheet of the Respondent for the F.Y. 2016-17. Form-2 submitted by the Interim Resolution Professional and IBBI certificate along with disclosures form -Annexures-13A and 13B. 10. The learned counsel for the Corporate Debtor filed counter and written submissions inter alia stating as under:- 'a. It is submitted that the present petition has been filed by the Petitioner beyond the period of limitation. The fact is that the Petitioner never provided the entirety of the services as agreed upon between the parties. b. It is submitted that, Petitioner had execute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of USD 13,178.34/- in lieu of the invoices raised by the Petitioner for its disbursements and expenditure as and when the Petitioner had submitted the supporting bills and expenditures. It is submitted that eventually, neither was the DRHP ever filed with SEBI for an IPO in India, nor was the private placement of shares in the USA ever completed. As such, when the DRHP itself was never filed, the question of paying any further amounts would not arise. The Respondent's IPO and the private placement of shares, were never rendered by the Petitioner. The averment made by the Petitioner that it is entitled to payments regardless of whether or not services were provided by it is not only utterly false but also absurd and baseless. The Petitioner cannot claim alleged amounts when it itself had not provided the services as per the Agreement. f. It is submitted that as per clause 2.3 of the Agreement, if the IPO was not completed within 12 months from the date of execution of the Agreement, the Petitioner was to be paid for the services rendered as mentioned in Appendix -I of the Agreement in furtherance of the IPO and private placement of the shares of the Respondent, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first entry is regarding expenses, and not any work or services provided by the Petitioner. This goes to show that the Petitioner did not render services for even 3 months after the Agreement was executed on 15.09.2014. j. It is submitted that non-fulfilment of the terms of the Agreement wherein no liability would arise on the Respondent in itself would amount not only to a lack of liability, but also a dispute as per S.5(6)(a),(b) and (c) of the Code. k. It is submitted that the terms of the Agreement under which the Petitioner is claiming the alleged amount, particularly, Clause 2.4 clearly states that any invoice was to be raised within 12 months from the execution of the Agreement if the IPO and the private placement do not occur within such time, i.e., latest by 15.09.2015 as stated above. As such, any liability, if at all, can only survive until the limitation period ends within 3 years from 15.09.2015 i.e., 15.09.2018 if no steps are taken by the Petitioner. Admittedly, no steps had been taken until the filing of the present petition on 06.12.2018, almost 3 months after the limitation period for claiming any amounts under the Agreement had expired. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. o. It is submitted that the Petitioner itself also states vide e-mail dated 23.08.2016 (Pg. No. 55 of the Petition) that it would make a revised offer after receiving the audited balance sheet, yet had never bothered to do so. p. Further, it is submitted that the Petitioner was silent for a period of almost 19 months from 28.08.2016 to 27.03.2018 without any demur, when on 27.03.2018, it inexplicably issued the demand notice without any valid reason. Even after the Petitioner had replied to the demand notice vide Reply Notice dated 11.04.2018, the Petitioner kept quiet for almost 8 months without any further reply until filing of the present petition on 06.12.2018, after the limitation for claiming any amounts under the Agreement had ended on 15.09.2018.' 11. Reiterating above, the counsel for the Respondent prayed to dismiss the Application. 12. Counsel for the Petitioner filed rejoinder and written submissions reiterating the averments made in the Petition. 13. Heard submissions of both sides and perused the record. 14. It is a fact on record that the Agreement for Legal Services was entered into between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereunder: That a payment of US$ 50,000 has been made by the Corporate Debtor soon after the execution of the agreement. That a further payment of US$13,178.34 was made on the invoice dated 08.12.2014. That neither was the draft red herring prospectus filed with SEBI nor were the Offering or the private placement of the shares of Corporate Debtor ever completed. That the services as mentioned in Appendix-I were never undertaken in full by the Operational Creditor and consequently no obligation arises on the Corporate Debtor to pay any further amounts to the Operational Creditor. That the Offering was not completed within 12 months and no communication was ever received from the Operational Creditor as to what the standard hourly rates were nor were the number of hours spent by the Operational Creditor in undertaking the said services. That there was never any agreement on the standard hourly rates. That the invoice dated 9.12.2015 for US$150,221.13 was issued wrongfully for no reason at all after a period of more than one year from the date of agreement and 85 days after expiry of 12 months mentioned in Clause 2.1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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