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TMI Blog2020 (1) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... t correct and the liability is only to the extent of ₹ 1.50 crores out of which a sum of ₹ 75 lakhs were already paid and the corporate debtor is ready and willing to settle the balance ₹ 75 lakhs on raising of a final invoice by the petitioner. Hence, there is no debt as claimed by the petitioner and the same is hit by section 5(6)(a) of the Code. The contention of the corporate debtor that there is a delay in arranging the funds is right in view of the fact that the funds were not arranged, as agreed within 6 months of signing of the engagement letter. Hence, there is a clear deficiency in the service provided by the petitioner, which will squarely fall under the ambit of section 5(6)(b) of the Code, as held by the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subscribing their signature in the said letter. The relevant clauses which has bearing on this petition are extracted below : 1.1.1.2 Funding amount : As per the requirement of construction finance/structured finance and takeover of existing facilities/debt arrangements that can range between ₹ 200 crores (partial take over of Piramal Portfolio) to ₹ 450 crores. 1.3 Capaegis shall provide the services to company in relation to the proposed services within a period of six (6) months and/or any period which may be mutually agreed ('term'). If company concludes the proposed transaction through Capaegis during the term, the company shall pay 100 per cent. of the agreed fees to Capaegis. 2.1 As consideration f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isory services related to project (Cityscapes) funded by KKR India Asset Finance P. Ltd. 20-4-2019 2,05,00,000 36,90,000 Remaining fees for advisory services towards arranging INR 280 crores for the project (Cityscapes) funded by KKR India Asset Finance P. Ltd. 5. The corporate debtor, on May 2, 2019 referring to the proforma invoice dated April 20, 2019 written a letter to the petitioner and the same is extracted below : Dear sir, We have received your letter and proforma invoice dated April 20, 2019. Kindly refer our under mentioned comment on the same. As per the engagement letter dated November 8, 2017 the fees of 15 of the total d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to arrange the funds within 6 months from the date of engagement letter of November 8, 2017 as provided in clause No. 1.3, but the sanction of loan facilities was on October 16, 2018 hence there is a delay in arranging the funds. It is submitted that this issue was raised in the letter dated May 2, 2019 sent by the corporate debtor to the petitioner wherein it was referred that both of them decided to amicably settle the fees at a sum of ₹ 150 lakhs. (b) The delay in obtaining the sanction of loan is apparent on the face of the record, that is the sanction letter dated October 16, 2018. The funds should have been arranged by May 7, 2018 and since sanction was obtained on October 16, 2018 due to the delay, the corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflecting that it is for the part of the fees and hence, the submission of the corporate debtor that both have amicably settled the fees for ₹ 1.50 crores is in consonance with the proforma invoice dated January 16, 2019 and all the subsequent proforma invoices raised by the petitioner cannot be accepted in view of the fact that the first proforma invoice is towards the full fees. The petitioner has already paid 50 per cent. of the amount due in respect of the first proforma invoice and submitted that they are ready to settle the remaining 50 per cent. on submission of the full and final bill by the petitioner. In view of this, the claim in this petition to the extent of ₹ 2.80 crores (excluding taxes) is not correct and the lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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