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TMI Blog2020 (10) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... executing four registered sale deeds in respect of four flats. Thus, parties entered into settlement with regard to the amount payable in respect of supply of TMT bars covered by the invoices. Even otherwise, the stand taken by the Corporate Debtor that in respect of the first six invoices shown in the table supra the amount was paid and remaining four invoices was subject matter of MoU. Thus, the contention of the Corporate Debtor that there is no operational debt due to the Petitioner by the Corporate Debtor. Some settlement took place between parties and disputes arose over settlement and civil suit was also filed against the Corporate Debtor and it is pending. Prior to filing of the present petition already Operational Creditor approached civil court. Secondly, Operational creditor earlier filed CP (IB) No. 124/9/HDB/2017 under Section 9 of IBC against Corporate Debtor and the same was withdrawn. Thirdly, the invoices referred are of the year 2013 whereas the present petition is filed in the year 2019. The limitation to proceed against invoices is three years from the date of raising of invoices. The invoices are barred by limitation by the date when the present petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The copies of the invoices in respect of which payment are overdue are annexed and marked as Annexure- A (vide pages: 14 to 23). 2.3 It is submitted by the Petitioner that as per its ledger account total outstanding amount which is due from the Corporate Debtor is ₹ 1,46,78,361/- (Rupees One Crore Forty Six Lakhs Seventy Eight Thousand Three Hundred and Sixty One Only) which includes principle amount of ₹ 1,00,73,925/- (Rupees One Crore Seventy-Three Thousand Nine Hundred and Twenty Five Only) and interest of ₹ 46,04,436/- (Rupees Forty-Six Lakhs Four Thousand Four Hundred and Thirty Six only)charged @ 24 % P.A. from 01.01.2017 to 30.11.2018. A copy of the ledger account maintained by the Petitioner is annexed and marked as Annexure-1 (vide pages: 71-72). 2.4 It is submitted by the Petitioner that after much persuasion the Respondent specifically agreed to give four (4) flats bearing Nos. 301,302,303 304 in the venture viz. M/s. Janapriya Engineers Syndicate Pvt. Ltd. situated at Survey No. 74/P 75/P at ward No. 8, Block-4 Fathenagar Village, Hyderabad duly constructed within a period of 06 months in lieu of the part of the sale consideration of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt amounting to ₹ 1,00,73,925/- along with interest @ 18% per annum, which comes to ₹ 1,46,78,361/- towards supply of goods to Respondent. 2.10 It is the case of Petitioner that execution of the MOU and admission of debt by the Respondent in the written statement filed in OS 111/2017 before the Hon'ble XXV ACJ, Hyderabad and also in the counter filed in C.P. (I.B.) No. 124/2017 before this tribunal amounts to acknowledgment of liability. It is further averred that the present petition is within limitation. 2.11 It is submitted the ledger account maintained and outstanding statement provided by Petitioner depicts an amount of ₹ 1,00,73,925/- to be still outstanding and payable by the corporate debtor to the operational creditor towards tax invoices raised against delivery of GRIP TMT Bars(Steel) in the year 2013-14. 2.12 The Petitioner submits that there is no dispute between the parties with respect to the invoices, ledger accounts and outstanding statements. COUNTER 3. Counter is filed by Corporate Debtor refuting the averments made by the Operational Creditor/Petitioner and contested as under: - 3.1 The primary objection taken by the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1973 against the PO No. JP/JES/PO/2951 dated 08.08.2013 (along with twenty four (24) other such invoices- total 28 invoices) which were due and payable by Respondent were listed in the debit note which was sent to the Respondent through email dated 23.10.2013 demanding immediate payment of Principal amount of ₹ 1,08,18,935 along with interest of ₹ 12,67,583/-. The Respondent further submits that after tallying the ledger account of the Petitioner Company arrived at the amount due by it to the Petitioner @ ₹ 1,03,00,000/- and further agreed to pay interest of ₹ 28,41,000/-. The total amount due according to Respondent was ₹ 1,31,40,000/- (rounded off to ₹ 1,32,00,000/-. 3.6 It is submitted pursuant to negotiations between the parties, the Respondent proposed transfer/registration of four flats bearing Nos. 301, 302, 303 304 on the 2nd Floor of Commercial Complex in favour of Petitioner at a value as per government valuation (with an intent to reduce the stamp duty payable by the Petitioner) towards full and final settlement against the amount due to it for supply of steel. The total value of the four flats worked out to ₹ 1,29,46,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties by registering four (4) commercial flats in favour of Petitioner. There is explicit mention in the MoU that the Parties shall not have any further claims against each other post the settlement as envisaged therein. 3.9 The Respondent blamed the Petitioner for concealing crucial information with regard to settlement of all accounts with the Respondent Company and the suit filed by the Petitioner Company before the XXV Addl. Chief Judge, City Civil Court, Hyderabad in the earlier petition filed before this Tribunal. The Respondent acquaints in its counter that the last four invoices claimed by the petitioner forms part of the pending Civil Suit and therefore it is disputed. 4. REJOINDER/REPLY OF THE PETITIONER TO THE OBJECTIONS RAISED BY THE CORPORATE DEBTOR: The Petitioner filed rejoinder/reply to the objections raised by the Corporate Debtor and reiterated as under: - 4.1 That the Respondent failed to adhere to its promise to pay to the Petitioner a sum of ₹ 1,03,00,000/- towards goods purchased in the event of non-construction of flats. In this regard, the Petitioner relied on para (H) of the terms of Memorandum of Understanding annexed at page 167 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 24% per annum from 01.01.2017 to 30.11.2018. Thus, the Corporate Debtor committed default of operational debt of ₹ 1,46,78,361/- which includes interest. The goods were supplied and delivered to the Corporate Debtor during 2013-14. The ledger copy is shown as Annexure-I (colly.) at page Nos. 46-49 of the paper booklet. The Counsel contended that the demand notice was issued to the Corporate Debtor which is shown as Annexure-F (Colly.) at page Nos. 37-40). There was reply from the Corporate Debtor dated 08.12.2018 which is marked as Annexure-G (Colly.) at page Nos. 42-43 of the paper booklet. Hence, this petition is filed to initiate Corporate Insolvency Resolution Process against the Corporate Debtor for committing default of the operational debt. The Learned Counsel for Operational Creditor would contend that it had raised 10 invoices and the amount covered by these invoices were long overdue. The Operational Creditor filed copies of invoices. The copies of invoices filed are not clearly visible. The Learned Counsel contended that the defence taken by the Corporate Debtor is unfounded. The Learned Counsel contended that these are the invoices raised which are not paid. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales 1957 3702 516630.00 7 21/08/2013 TMT Bars Sales 1962 2951 513870.00 8 21/08/2013 TMT Bars Sales 1965 2951 490800.00 9 22/08/2013 TMT Bars Sales 1972 2951 454683.00 10 22/08/2013 TMT Bars Sales 1973 2951 457944.00 Total 4634570.00 5.3 The contention of the Learned Counsel for Corporate Debtor is that the first 06 invoices have been paid through proper banking channels and the remaining 04 invoices were settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Corporate Debtor bearing CP (IB) No. 124/9/HDB/2017. The said petition was permitted to be withdrawn when Corporate Debtor took specific plea that the claim was settled through understanding by executing sale deeds in respect of four flats bearing Nos. 301, 302, 303 304. There were a lot of correspondence between the Operational Creditor and the Corporate Debtor in respect of the said invoices and notices and reply notices were exchanged. The Counsel further contended that the Operational Creditor further filed civil suit in the Court of Hon'ble XXV Addl. Chief Judge, City Civil Court at Hyderabad bearing OS No. 111 of 2017 which is pending. Thus, the Learned Counsel contended that there is a pre-existing dispute in the form of civil suit. The invoices were raised in 2013. However, the present petition is filed in 2019 to enforce the amount covered by the invoices. The limitation is for 03 years from the date of raising invoices. However, the present petition is filed beyond 3 years. The petition deserves to be dismissed on this ground apart from prior dispute which in the form of civil suit which is pending. 5.5 The Petitioner filed Affidavit along with the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deeds and wanted the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. Already Civil Suit was filed for specific performance to complete the construction of the flats and delivery of the same and the said civil suit is pending. 5.9 It is undisputed fact that the amount due by the Corporate Debtor to the Operational Creditor was settled by entering into MoU and by executing four registered sale deeds in respect of four flats. Thus, parties entered into settlement with regard to the amount payable in respect of supply of TMT bars covered by the invoices. Even otherwise, the stand taken by the Corporate Debtor that in respect of the first six invoices shown in the table supra the amount was paid and remaining four invoices was subject matter of MoU. Thus, the contention of the Corporate Debtor that there is no operational debt due to the Petitioner by the Corporate Debtor. 5.10 We have gone through the documents filed by the Operational Creditor. Some settlement took place between parties and disputes arose over settlement and civil suit was also filed against the Corporate Debtor and it is pending. Prior to filing of the present petition already Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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