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TMI Blog2020 (2) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties before filing of the present petition under Section 9 of I B Code, is also raised by corporate debtor in its letter, dated 23.05.2017, sent to the operational creditor in response to demand notice, dated 20.04.2017. e. The claim of petitioner is also barred by Limitation since application is filed under section 9 of I B Code, beyond three years from the date of alleged claim. f. Accordingly the present petition filed under Section 9 of I B Code, is hereby dismissed. - C.P. (IB) NO. 441/9/HDB/2018 - - - Dated:- 6-12-2019 - Ratakonda Murali, Judicial Member And Narender Kumar Bhola, Technical Member Aravind Reddy for the Appellant. G.V.B. Santhoshkumar and Sreeshylam for the Respondent. ORDER Narender Kumar Bhola, 1. The present petition is filed by Messrs Terra Infra Development Limited (hereinafter referred to as 'petitioner/ operational creditor') against Messrs KMC Construction Limited (hereinafter referred to as 'respondent/ corporate debtor). The respondent/ corporate debtor has defaulted in paying ₹ 4,95,53,552/- (Rupees four crores ninety five lakhs fifty three thousand five hundred and fifty two only) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of ₹ 4,24,54,425/- towards the project cost. 2.5 It is averred in para 7 that on 09.01.2016, the petitioner/ operational creditor submitted a bill (known as 'IPC-12') for unbilled and variation item of work done up to the month of June, 2012, for ₹ 1,42,70,536/- to the respondent/ corporate debtor. The respondent/ corporate debtor had neither replied nor raised any question. The petitioner/ operational creditor, on 12.02.2016, had requested the respondent/ corporate debtor that total receivables amount of ₹ 4,95,53,552/- as on 09.01.2016, details of which are enumerated at (a) to (f) of para 7 of the petition, be released. 2.6 In para 9 it is averred that Addendum-I provide for release of 85% of the bills within 7 days from the date of initial submission and due certification from PMC and balance 15% will be paid within 7 days from certification of PMC. 2.7 In para 10 it is submitted that the respondent/ corporate debtor is taking shelter under this particular provision and illegally withholding the genuine claims of the petitioner/ operational creditor. The respondent/ corporate debtor in its reply, dated 23.05.2017, has trashed all the mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent/ corporate debtor was under obligation to reply to the said notice within 10 days, but it could not. 2.10 It is submitted by the petitioner/operational creditor that the respondent/ corporate debtor has thus, failed to disburse the unpaid operational debt of ₹ 4,95,53,552/- (Rupees four crores ninety five lakhs fifty three thousand five hundred and fifty two only) despite various communications, requests, statutory notices, dated 20.04.2017 and 14.10.2017, addressed to the respondent/ corporate debtor. 3. COUNTER BY THE RESPONDENT: 3.1 The respondent has filed its counter, dated 27.11.2018, vehemently opposing admission of the petition. The main contentions raised in the counter are summarised as under: 3.2 It is averred in para 4 of the Counter that Corporate Debtor being one of the leading integrated highway developers in the country having necessary skills and expertise to execute large size projects in Roads and Highways and other core sectors and has secured from Thrissur Expressway Limited, an Engineering, Procurement Construction (EPC) Contract for execution of Six-Laning of the Highway from Vadakanchery to Thrissur Section of NH-47 (km 240.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional creditor addressed letter, dated 25.04.2011, to the respondent/ corporate debtor citing threats from the local people on the project site. The respondent/ corporate debtor instilled confidence in the petitioner/ operational creditor vide its reply, dated 29.06.2011, stating that the respondent/ corporate debtor has already obtained an order from the Hon'ble High Court of Kerala on 20.04.2011, which enables the petitioner/ operational creditor to work at the site without any obstruction or hindrance. (Copies of said letters are at Documents No.5 and 6 to the Counter. 3.8 In para 9, page 8 of the Counter the respondent/ corporate debtor submitted that the lackadaisical approach of the petitioner/operational creditor placed the total project of the respondent/ corporate debtor costing about ₹ 873 crore at peril. Though most of the area is problem free, the petitioner/ operational creditor had addressed letter, dated 16.08.2011 and voiced certain trouble on the site. The respondent/ corporate debtor gave reply, dated 18.08.2011, stating that hindrances on the project corridor will be removed and also mentioned that in other free and vacant areas, wherever work can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bills IPC-1 to IPC-11 in its petition. This itself proves that all the bills up to IPC-11 have been duly paid by the respondent/ corporate debtor. Relevant statement is placed at DOCUMENT No.9 of the Counter. 3.12 It is submitted in para 12 of the Counter that non-fulfilment of the allocated work, not achieving the given milestones within the timelines and abandoning the work without prior intimation by the petitioner/ operational creditor as has been admitted fact in petition, the respondent/ corporate debtor has incurred a loss of not less than ₹ 40.00 crore. 3.13 As regards IPC-12 it is submitted in para 13 of the Counter that the present claim of the petitioner/ operational creditor is ₹ 4,95,53,552/- which was never validly submitted by the petitioner to the respondent/ corporate debtor. Thus, the claim is false, fabricated and untenable. 3.14 In para 14 of the Counter it is submitted that the subcontract was supposed to have been completed by December 2012. The petitioner could complete only 1.82% of the subcontract work given to him. Even according to the petitioner, it had completed only 2.88% of the subcontract work. When the whole 100% was to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the petitioner/ operational creditor withdrew from the subcontract in 2012, itself and gave a letter, dated 21.01.2013, surrendering the subcontract and undertaking not to submit any bills thereafter. The Project Management Consultant appointed by the respondent/corporate debtor was in existence even thereafter and the respondent/ corporate debtor has booked the invoices of PMC up to March, 2013. This proves the falsehood of the petitioner/ operational creditor. At no point of time between 2012 and 2016, the petitioner/operational creditor had ever complained to the respondent/ corporate debtor about absence of the Project Management Consultant which he suddenly and surprisingly discovered in 2016. 3.19 In para 22 of the Counter the respondent/corporate debtor referred to various communications and correspondence addressed by the petitioner/ operational creditor to dislodge the claim submitted by the petitioner/ operational creditor vide IPC-12. It is averred that the work in progress valued at ₹ 30,79,610 as shown in the letter, dated 22.08.2015, in the guise of bill was converted into IPC receivable to the tune of ₹ 1,34,10,023 which means that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of amount of entire claim of ₹ 4,95,53,552/-. This default is continued. 6. On the other hand the learned counsel for corporate debtor submits that the operational creditor has failed to fulfil its obligations under the Workcontract (EPC Subcontract Agreement, dated 24.12.2010) and also he abandoned the work and left the site without intimation. 7. He further submits that as per the subcontract agreement the operational creditor has completed 1.83% of the total value of work given to him and the corporate debtor has already paid the amount of ₹ 3,23,06,700/-against the IPC bills 1 to 11 as already submitted by the operational creditor. 8. It is also the case of corporate debtor that in terms of the said work contract the operational creditor was required to obtain certificate from Project Management Consultant. However operational creditor has failed to obtain the said certificate in support of its bill in IPC-12. 9. It is further submitted by learned counsel for corporate debtor that on 21.01.2013, the operational creditor has admitted that it will not claim any bill after 21.01.2013. In this connection the copy of the said letter is available at page ..... X X X X Extracts X X X X X X X X Extracts X X X X
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