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TMI Blog2021 (1) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner/ Operational Creditor could not produce any documentary evidence to the effect that it had provided AMC services as agreed upon, or any evidence to show that the Corporate Debtor has acknowledged debt or any acknowledgement that the Corporate Debtor has received invoices issued by the Operational Creditor or that the Corporate Debtor has confirmed any debt, in part or full - It is further observed that the petitioner/ Operational Creditor had claimed to have issued Demand Notice dated 11.09.2017 (ANNEXURE 'E'). However, there is no proof of service/ acknowledgement of the said Demand Notice. so is the case with Demand Notice dated 17.08.2019 (ANNEXURE 'F'). Besides, affidavit under section 9(3)(b) of the I B Code, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.02.2016 (ANNEXURE 'A') sans any evidence to show that such an agreement has ever been executed and sans evidence that any debt has become due and payable by the respondent/ Corporate Debtor - petition dismissed. - CP (IB) No.741/9/HDB/2019 - - - Dated:- 6-1-2021 - SHRI K. ANANTHA PADMANABHA SWAMY, MEMBER (JUDICIAL) and SHRI VEERA BRAHMA RAO AREKAPUDI, MEMBER (TECHNICAL) For the Petitioner: Shri Pramod Maligi, Advocate For the Respondent: Shri Ramana Reddy, Practising Company Secretary. ORDER This petition is filed by Messrs Ingersoll Rand Climate Solutions Private Limited, who is the Operational Creditor, stating that an operational debt of ₹ 6,63,118/- (Rupees six lacs sixty three thousand one hun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Its paid up share capital is ₹ 69,93,58,000/- (Rupees sixty nine crores ninety three lacs fifty eight thousand only). 2.3 The Corporate Debtor had approached the Operational Creditor during or around February 2016 for Annual Maintenance Contract (AMC) services and the Corporate Debtor had placed purchase order dated 25.02.2016 (ANNEXURE 'A') for AMC services for the units in question. Accordingly, the Operational Creditor had raised invoices for an aggregate amount of ₹ 6,63,118/- vide Invoice No. 185124 dated 23.05.2016 and Invoice No.186652 dated 20.08.2016 (ANNEXURES 'B' and 'C'). However, the Corporate Debtor has failed to complete the full payment of due amount. (Para 4) 2.4 The Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne SC 353, wherein it was held that, Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding Rs.l lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92/ND/ 2017 by the NCLT, New Delhi in the matter of OPGS POWER GUJARAT (P) LTD. VS. RL STEELS ENERGY LTD. 4.3 The Corporate Debtor, in para 3 of the Written Submissions, has submitted that the petition is required to be dismissed on the following grounds: (i) The petitioner has breached its obligations under Purchase Order dated 25.02.2016 (ANNEXURE 'A' of the petition) and failed to provide AMC services as agreed leading to losses incurred by the Corporate Debtor. (ii) The Corporate Debtor does not owe any dues to the petitioner. Management of the respondent has not at any point of time received their invoices, services and confirmed the amount claimed by the petitioner. (iii) There is no operational debt under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational Creditor. Nowhere we find any acknowledgement of the Corporate Debtor, except Purchase Order dated 25.02.2016 (ANNEXURE 'A', page 17). Mere signing of Purchase Order, ipso facto, does not lead to its execution. 8. In absence of such acknowledgement/ confirmation by the Corporate Debtor, operational debt is not proved. Further there is no documentary evidence to show that debt has become due and payable by the Corporate Debtor. Thus, the requirements as laid down by the Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PVT LTD vs. KIRUSA SOFTWARE (P) LTD, (2017) 1 SCC OnLine SC 353, are not fulfilled in the present case. 9. Furthermore, the petition is filed by Power of Attorney Holder vide Power of At ..... X X X X Extracts X X X X X X X X Extracts X X X X
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