9911796707
TMI Blog2021 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... estion, are as follows: (1) M/s. Aster Technologies Pvt. Ltd. (hereinafter referred to as 'Petitioner/Operational Creditor') is incorporated under Companies Act, 1956 having CIN No. U74899DL1998PTC033500. The Company is engaged in the business of manufacturing, supplying and trading of Commercial food service Equipment, Refrigeration equipment etc. (2) M/s. Solas Fire Safety Equipment Pvt. Ltd. (hereinafter referred to as 'Respondent/Corporate Debtor') is a Private Company limited by Shares incorporated on 18.07.2002 bearing CIN: U29299KA2002PTC030780. Its Authorized Capital is Rs. 1,50,00,000/- and Paid-up share Capital is Rs. 1,50,00,000/-. (3) It is stated that the Corporate Debtor through its work order dated 27th May 2016 placed an order for installation of piranha, fire Suppression System at First Floor and NBS JLL on Ground Floor of M/s. NETAPP, New Bangalore, site, Phase I, Building 1 located at Mahadevapura, Bangalore-560048. The Operational Creditor duly accepted the order dated 27.05.2016 and supplied the required materials and completed the work assigned to it. Subsequent to supply of materials and installation of piranha, fire Suppression System, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Adjudicating Authority on 27th January 2021. The Appeal is disposed of accordingly." In pursuant to the above order, the case was listed for hearing on various dates viz., 29.01.2021, 05.02.2021 and on 11.03.2021. 4. The Respondent has filed its Statement of Objections on 05.02.2021 to the petition, by inter alia contending as follows: (1) The Operational Creditor was required to not only to supply fire safety materials but also undertake installation and commissioning of the materials at the designated site. However, the Operational Creditor failed to undertake the installation and commissioning work in a manner required of it. As a result of the Operational Creditor's deficiencies in performing its work, the Respondent not only suffered penalty from the end customer but it also incurred expenses approximately Rs. 6,40,000/- to undertake the commission and installation work which the Operational Creditor failed to perform. The Respondent has appraised the Operational Creditor's deficiencies by way of correspondences dated 26.05.2018 and 13.12.2019. Therefore, the Respondent is not liable to pay any money to the Operational Creditor let alone what is claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also filed written submission dated 26.02.2021 by inter alia stating as follows: (1) The Petitioner, instead of producing certification has relied on the alleged letter dated 13.03.2018. On perusal of the said letter, the same was written in response to the letter of the Petitioner dated 24.02.2018 which the Petitioner deliberately suppressed while filing the above application. As per the letter dated 13.03.2018 when the work of the Petitioner as well as the invoice based on which the application was filed was examined and reviewed there were serious defects and shortcoming in the Petitioner work as a result of which the Respondent wrote the letter dated 26.05.2018 to the Petitioner highlighting the said defects. Therefore, the Respondent raised a bona fide dispute as regards the Petitioner's work almost one and half years prior to the demand notice relied upon by the Petitioner dated 04.10.2019. (2) The Petitioner has relied on Form 26AS stating TDS @ 10% has been deducted by the Respondent which shows acceptance of the debt. It is pertinent to note that the issuance of TDS Certificate does not amount to acknowledgement of debt. The certificate does not refer to any amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26th May, 2018, which is enclosed to their Reply as Annexure R.2, where in by expressing unsatisfactory work, has finally expressed to resolve the issue and expressed to pay 50% of due and to close the matter. Having accepted the dues of Petitioner as early as on 13.03.2018, the Respondent is estopped from changing its stand and raise untenable grounds of unsatisfactory work, delay and laches etc. Therefore, it is to be held that there is no bona fide pre-existing dispute as alleged and it is untenable. 9. It is also relevant to point out here that the Adjudicating Authority in the earlier order dated 09th September 2020, (which was set-aside in Appeal) has inter alia observed that the dispute raised by the Respondent do not constitute valid legal dispute and thus directed the Respondent to settle the issue. Even after remanding the matter, the Respondent is not willing to settle the issue though ample opportunity was given to them. Moreover, the Respondent, even not pleaded that it is solvent Company so as to pay its liabilities. 10. As rightly contended by the Petitioner in their Rejoinder, cause of action firstly arose in the case on 09.11.2016, when the petitioner has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor; e) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period; f) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator; g) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process; 3) The IRP is directed to follow all extant provisions of the IBC, 2016, and all extant rules including fees rules as framed by IBBI from time to time. The IRP is hereby directed to file progress reports to the Adjudicating Authority from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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