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TMI Blog2020 (1) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor is that Annexure P-6 of the petition being memorandum of payment showing due amount from the corporate debtor of ₹ 4,31,73,446/- is an unsigned/unverified document and that a copy of RA 04 (combine) for an amount of ₹ 4,31,73,446/- was never submitted to it. On the other hand, the claim of the operational creditor is that the letter of termination dated 07.10.2016 was not received by it. The learned authorized representative for the operational creditor has referred to the deduction of income tax of 2% made by the corporate debtor on work done of ₹ 8,59,81,227/- for the Financial Years 2012-2013 to 2016-2017 (Annexure CA/4 of CA No. 507/2018). However, simultaneously, the operational creditor has stated that it had executed work amounting to ₹ 9,47,21,459/- excluding taxes and cost of retained tools, plant and machinery. The claim of executed work being more, the details of work done as per the Form 26AS do not affect the finding that a dispute truly exists in fact. It is concluded that the claim of dispute raised by the corporate debtor is a plausible contention requiring further investigation and is not a patently feeble legal argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor') is a company incorporated under the provisions of Companies Act, 2013 with authorized share capital of ₹ 7,10,00,000/- and paid up share capital of ₹ 7,08,36,300/-. The CIN of the respondent-corporate debtor is U55101PB2011PTC035393 and its registered office is situated in Amritsar in the State of Punjab and therefore, the matter falls within the territorial jurisdiction of this Tribunal. Copy of the master data of the respondent-corporate debtor is at Annexure P-2 of the petition. 4. In compliance with the order dated 28.09.2018, the operational creditor filed CA No. 461/2018 for placing on record the amended application in Form 5 along with supporting affidavit and postal receipt as a proof of despatch of the amended Form to the corporate debtor. Vide order dated 17.10.18, the documents were taken on record. 5. In compliance with the order dated 17.10.2018, the operational creditor filed CA No. 507 of 2018 for placing on record the various emails and ledger account and other documents. The documents attached with the CA as Annexures CA/1 to CA/6 were taken on record as per order dated 12.11.2018. In the same order, notice of the application was dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to repay the unpaid operational debt (in default) of ₹ 4,31,73,446/- within 10 days from the receipt of the notice. The demand notice was sent through speed post which was returned with the remarks refused to accept . The returned envelope is attached as Annexure P-14 of the petition. 8. The operational creditor has not proposed the Interim Resolution Professional. 9. The Corporate Debtor filed reply vide Diary No. 1574 dated 28.03.2019 by way of affidavit of Mr. Gorinder Singh Sandhu, Authorised Representative of the Corporate Debtor who has been authorized vide Board Resolution dated 25.02.2019. It is submitted that there is a pre-existing dispute between the parties which led to the corporate debtor terminating the agreement/letter of intent; the memorandum of payment (Annexure P-6 of the petition) is a fabricated/unverified/unsigned document prepared by the operational creditor and the operational creditor is facing proceedings under Section 7 of the Code wherein an order of admission has been passed. 10. It is also submitted that the corporate debtor required a contractor for construction of Civil and Constructional Work of Park Inn Hotel by Radisson, Phagwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made vide cheque dated 28.07.2016, payment of RA-02 (Combine) was made vide cheque dated 16.08.2016 and the final payment of RA-03 (Combine) was made vide cheque dated 09.09.2016. It is further submitted that the operational creditor never submitted a copy of any such RA-04 (Combine), for an amount of ₹ 4,31,73,446/- either to the corporate debtor or filed the original verified/countersigned copy of the RA-04 (Combine) along with the Section 8 notice or even filed a copy of RA-04 (Combine) of main building along with the present petition. Also, the payments were not in the proper format. The corporate debtor has also filed a Civil Suit No. 5964 of 2018 to the effect that the defendant has violated the terms of Agreement/Letter of Intent dated 19.01.2013 along with its annexures, which are part and parcel of Agreement/Letter of Intent and Defendant is liable to pay huge amount to plaintiff which can only be calculated after completion of entire work. 12. In the rejoinder, the operational creditor has stated that the LOI dated 19.01.2013 issued by the respondent to the operational creditor did not contain any condition under which the respondent could terminate the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor is raising a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence, keeping in view the observations of the Hon'ble Supreme Court that the Adjudicating Authority (AA) does not need to be satisfied that the defence is likely to succeed. 16. The learned authorized representative for the operational creditor has placed reliance on Annexure P-6 of the petition in which the cumulative amount due is shown as ₹ 4,31,73,446/-. 17. Learned counsel for the corporate debtor has placed reliance on the letter of termination an e-mail (Annexure A-3 Colly. of Diary No. 1574 dated 28.03.2019). The contents of the termination letter relates to the communication of deficiency of services on the part of operational creditor and termination of the contract between the operational creditor and the corporate debtor w.e.f. 07.10.2016. It is observed that the Authorized Representative for the operational creditor contended that the letter of intent dated 19.01.2013 issued by the corporate debtor for construction of civil and structural works of Park Inn Hotel b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movable, immovable, consumable and all the store material and make inventory for all this. NOW WE ARE PLANNING TO MOBILIZE THE SITE BY OUR PROFESSIONAL TEAM BY BRPL, THIS IS FOR YOUR INFORMATION AND NECESSARY ACTION. 20. It is pleaded by the learned counsel for the corporate debtor that this email is in consonance with termination of the LOI vide letter dated 19.01.2013 and that the said decision/letter dated 07.10.2016 also finds mention in the email dated 07.10.2016 sent by the corporate debtor to the operational creditor (Annexure CA/3 of CA No. 507/2018). It is submitted by the learned counsel for the corporate debtor that the undue delay in completion of the work was against the expressed terms and conditions of the LOI. 21. We find that a dispute truly exists in fact since the contention of the corporate debtor is that it terminated the LOI by letter of termination dated 07.10.2016 on the ground of undue delay in completion of the work and on the other hand, the plea of the operational creditor is that the termination of the LOI was made by it vide email dated 07.10.2016 on the ground of non-payment of dues. The plea on behalf of the corporate debtor is that Ann ..... 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