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TMI Blog2020 (5) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... udes for Rs. 32,35,375 towards interest at 24 per cent. per annum up to June 21, 2019. 2. Brief facts of the case, as mentioned in the application, are as follows : (1) M/s. I and B Engineers P. Ltd. (hereinafter referred to as the "petitioner/operational creditor") is an unlisted private non-Government company bearing CIN : U45309WB2008PTC124644 having its registered office at P-70, CIT Road, Sch : VIM Kankurgachi, Kolkata, West Bengal-700 054. (2) M/s. Scorpio Engineering P. Ltd. (hereinafter referred to as the "respondent/corporate debtor") is an unlisted private non-Government company incorporated on October 7, 1986, under the Companies Act, 1956 with CIN : U40106KA1986PTC007827 having its registered office at No. 132, Wheeler Road, Cox Town, Bengaluru-560 005. The authorised share capital of the company is Rs. 3,50,00,000 and paid-up share capital of the company is Rs. 3,50,00,000. (3) During the course of business, the operational creditor had sup plied spare parts, accessories and components of the plant and machinery to the corporate debtor, vide invoice dated August 11, 2016, in pursuance to purchase orders placed during the years 2015 and 2019. The respondent faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24, 2015 wherein, the IPCHL confirmed that it would release the balance amount to the petitioner directly and was categorically accepted by them. (3) It is stated that for the purpose of security safeguarding its interest, the petitioner requested the respondent to provide post-dated cheques for the amounts to be paid by IPCHL. There was an unequivocal understanding between three parties that the post-dated cheques issued by the respondent will be returned, once IPCHL makes the required payment to the petitioner and was consistency followed by the IPCHL as well. Further IPCHL/SDPCL made the payments to the petitioner and the security cheque provided by the respondent were duly returned to the respondent by the petitioner. (4) It is further stated unfortunately the IPCHL defaulted the last few payments under the tripartite agreement. The authorised representatives of the petitioner sent e-mails to the representatives of IPHCL requesting for payments to be made at the earliest. The representatives of IPCHL also attached scanned copies of DD drawn towards the petitioner for the said payments. Therefore, the petitioner was clear that its dues were to be paid IPCHL, hence reminders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d invoices upon the respondent. Further the respondent on various occasions stated before the petitioner that he is not in position to make payments and hence wanted to be made payments directly from IPCHL to the petitioner's account. At the request of the respondent, MoM was executed on November 24, 2015 among all three parties. Further, the respondent them selves have acknowledged the debt in their own books and have issued post-dated cheques- to the petitioner as per annexure 1 of the petition. The respondent themselves have made payment to the petitioner on November 16, 2016 and January 11, 2017, after the date of the execution of the MoM. (2) The respondents have been only trying to hold responsible some one else for its own deeds. The respondent states that onus is on IPCHL, despite being aware that the invoices were raised on the respondent, the goods was received by the respondents, the work orders were issued by the respondent, hence it cannot be admitted that the burden for payment is on someone else. The respondent has been showing in its balance sheet for the period ending 2018-19. The respondent not only acknowledged the outstanding debt by way of a letter but al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPCHL has entered into similar agreements with other vendors as well and has been making direct payments. (2) Pursuant to the tripartite agreements, the petitioner has received payments from IPCHL directly as demonstrated below : Date Payment 24-07-2015 IPCHL made payment to the petitioner for Rs. 50,00,000 (ad hoc) 10-08-2015 IPCHL made payment to the petitioner for Rs. 50,00,000 4-09-2015 IPCHL made payment to the petitioner for Rs. 30,00,000 as per MoM dated 12-08-2015 17-10-2015 IPCHL made payment to the petitioner for Rs. 25,00,000 19-12-2015 IPCHL made payment to the petitioner for Rs. 1,20,00,000 as per MOM dated 24-11-2015 6-08-2016 IPCHL made payment to the petitioner for Rs. 70,15,518 (3) The petitioner confirmed the tripartite agreement several times in correspondence and sent reminders for payment to IPCHL and not to the respondent. As per the petitioner's own correspondence, the respondent was not liable to make the payments to it. (4) It is trite law that when there exists a pre-existing dispute, the instant petition is not maintainable. The petitioner makes a bare denial of the tripartite agreement without any explanation. The petitioner conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, August 12, 2015 and November 24, 2015, whereby the petitioner agreed that IPCHL would release the balance amounts to it. Accordingly, a minutes of meeting (MoM) dated November 24, 2015, was duly executed by all three parties, wherein IPCHL has agreed to release outstanding payment subject to despatch of the materials mentioned therein. IPCHL has also entered into similar agreements with other vendors as well and has been making direct payments. Prior to and after to the said MOM called as the tripartite agreement, the petitioner has received payments from IPCHL directly as mentioned below : Date Payment 24-07-2015 IPCHL made payment to the petitioner for Rs. 50,00,000 (ad hoc) 10-08-2015 IPCHL made payment to the petitioner for Rs. 50,00,000 4-09-2015 IPCHL made payment to the petitioner for Rs. 30,00,000 as per MoM dated 12-08-2015 17-10-2015 IPCHL made payment to the petitioner for Rs. 25,00,000 19-02-2015 IPCHL made payment to the petitioner for Rs. 1,20,00,000 as per MoM dated 24-11-2015 6-08-2016 IPCHL made payment to the petitioner for Rs. 70,15,518 10. It is also relevant to point out here that the petitioner got issued a legal notice as early as Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir dishonour is concerned, it is for the parties to prosecute the criminal case, which is stated to be pending before the competent court, subject to merits of that case. So far as judgements cited by the party, as cited supra, they are not squarely covered by the facts and circumstances of the case, as available in the instant case, as briefly stated supra. 12. For the aforesaid reasons and circumstance of the case, we are of the considered opinion that the petitioner failed to make out even prima facie case about the defaulted amount to be payable by the respondent, apart from it, the petition is barred by laches and limitation. In addition, there is a pre-existing dispute, which cannot be gone into summary proceedings initiated under the provisions of the Code, and it is initiated with an intention to recover alleged outstanding from a party, who is not liable to pay it, rather than to initiate the corporate insolvency resolution process, which is the object of the Code. Therefore, the petition is liable to be dismissed. 13. In the result, C. P. (IB) No. 372/BB/2019 is hereby dismissed as devoid of merits. We make it clear that this order will not come in the way of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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