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TMI Blog2020 (5) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... ical Member For the Applicant : Ms. Punita Arora and Ms. Avadhi Jain, Advs. For the Respondent : Prateek Seksaria, Ashish Pyasi, Priyesh Mishra and Tushar Garodia, Advs. ORDER CHANDRA BHAN SINGH, TECHNICAL MEMBER 1. This is an Application being CP 4158/2018 filed by RS Infra projects, Operational Creditor or Applicant, under section 9 of Insolvency Bankruptcy Code, 2016 (I B Code) against Supreme Infrastructure India Limited Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). 2. This Application is filed through its proprietor Mr. Ram Babu Sharma of the RS Infra Projects duly authorized to file the present Application. 3. The Applicant has claimed an amount of ₹ 3,14,83,817/- from the Corporate Debtor. The Applicant is of the view that its claim is based upon an Agreement arrived at between them. A copy of the said Agreement dated 20-7-2015 is annexed to the Application. 4. A brief history of the transaction between the Applicant and the Corporate Debtor is as follows: a. The Petitioner enters into an agreement with the Corporate Debtor on 22-7-2015. As per the agreement, the Petitioner had provided the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able by us. We, have incurred loss of getting the work getting completed from other contractor since you left the work un attended and accordingly a huge amount of financial loss is suffered by us and continue to suffer for which we reserve our right to claim as advised. 7. The relevant clauses of the LOI as provided in the Petition is reproduced below: a. This LOI is being issued in duplicate. You are requested to please sign the duplicate copy as a token of your acceptance and return the same to us for our records. On your acceptance, a detailed agreement shall be entered onto for the above work. b. Procedure for billing of work in progress Volumetric Measurements of filling of earth Payment for overburden removal by the Sub Contractor shall be made in the basis of the actual work executed. The actual work executed shall be calculated on the basis of volumetric Measurement. c. The procedure for volumetric measurement shall be as below: All the works in progress will be jointly measured in situ by representative of the Engineer-in-charge and the Sub Contractor's agent progressively. Such measurements will be recorded by the engineer-in-charge or his aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was never served upon the Corporate Debtor and the invoices are also false and created document to extort money from the Corporate Debtor. c. The National Highways Authority of India issued tender for construction of road KM toll road NH8 at state of Gujarat. The said work was allotted by said authority to one contractor M/s Crest Logistics and Engineers Private Limited the said contractor further allotted/assigned the said work to the Corporate Debtor. The Corporate Debtor was intended to assignee part of the said work to the Petitioner and accordingly said LOI was issued to Petitioner. The cost of the said work was approx. ₹ 4.78 Crores the work was required to be undertaken as per the terms and conditions and specifications of the contract executed with the authority with the said contractor. d. That during the construction of the road or stretches of the road, regular inspections were undertaken by the said authority the payments were released to the said contract only after due certification and verification of the work done submitted by the contractor. e. That the Petitioner has produced certain invoices which were never served upon the Corporate Debtor because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e LoI is as under:- 6.1. Payment for overburden removal by the Sub Contractor shall be made on the basis of actual work executed. 6.2. The actual work executed shall be calculated on the basis of volumetric Measurement. 6.3. The procedure for volumetric measurement shall be as below:- 6.31. All the works in progress will be jointly measured in situ by representative of the Engineer-in-Charge and the Sub-Contractor's authorized agent progressively. Such measurements will be recorded by the Engineer-in-Charge or his authorized representative and signed in token of acceptance by the Sub Contractor or its authorized representative. It is clear from the above that the Engineer-in-Charge of the Contractor (here, the Respondent) and the representative of the Sub Contractor (here, the Petitioner) were to jointly do the volumetric measurement and thereafter submit the Bill. No such joint measurement of work done has been submitted before the Bench. The Respondent mentions that since no work was done, therefore, there was no question of a joint measurement of work. (iii) Para 7.1 of the 'LoI' deals with manner of payment and mentions the following:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. The Respondent mentions that they have filed a criminal complaint with the Police regarding these documents on 3-12-2018. (vi) This Bench also took note of the fact that the last Invoice was raised on 16.03.2016 and as per Para 7.2 of the LoI payment was to be released within 10 days from the receipt of the Bills. However, before the issue of Demand Notice in Form-3 on 10-9-2018, there was no communication from the Petitioner to the Respondent for any payment. This Bench, therefore, finds merit in the contention of the 'Respondent' that no occasion ever arose of any payment as there was no work done by the Petitioner and therefore, no dispute was raised by the respondent before the issue of the Demand Notice. (vii) The Corporate Debtor on Affidavit has mentioned that the work to be performed by the Petitioner related to Filling with available earth including watering, ramming, consolidating and dressing complete at KM Toll Road NH-8A in the state of Gujarat and Transportation . The Corporate Debtor mentions that this work is at a site viz. Nh-8A in the State of Gujarat. As per the mandatory NHAI guidelines, earth works are to be carried out following certain pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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