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TMI Blog2021 (9) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not gone into merits of the matter with respect to any Pre-Existing Dispute or otherwise. This Appeal is disposed of expunging Paras 29 and 34 from the Impugned Order dated 04.01.2021. - COMPANY APPEAL (AT) (INSOLVENCY) No. 122 of 2021 - - - Dated:- 8-2-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Petitioner : Mr. Sumeet Godadia, Mr. Kaushik Poddar and Mr. Saurabh Jain, Advocates For the Respondent : Mr. Balbir Singh, (Addl. Solicitor General of India) alongwith Mr. R. Sudhinder, Mr. Adarsh Tripathi, Mr. Vikram Singh Baid and Mr. Naman Tandon, Advocates JUDGEMENT [Per; Shreesha Merla, Member (T)] 1. Aggrieved by the Order dated 04.01.2021, in C.P.(IB) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Creditor, it has not included the Purchase Order which is binding upon the Operational Creditor. In the Reply notice dated 21.04.2020, the Corporate Debtor sated that as per the corporate debtor records, the amount payable to the operational creditor is 151,09,867, whereas the amount retained as penalty for short supply is 78,95,38,277 (penalty for 17rakes (January 18-2 rakes, Feb 18-3 rakes, March 18 and April 18-6 rakes each. Penalty @ double the rate of transportation). 32. The Operational Creditor counsel has filed rejoinder setting up a new case that since the Performance Bank Guarantee has not been retained, it is to be construed that no dues are outstanding against the Operational Creditor, therefore whatever defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. 36. The Operational Creditor, for the reasons best known to it, did not send its authorized representative to make the bill final, unless bill is made final, in case anything is to be paid, the Corporate Debtor cannot be called as defaulted in paying the bill of the Operational Creditor. 37. In a sense, it could be said, that the default is not in existence because final bill has not been prepared. In fact the Corporate Debtor itself called upon the Operational Creditor to clear this issue to discount the penalties from the unpaid invoice amount retained with the Corporate Debtor. 38. In any event, apart from raising dispute over penalties from the year 2018 itself, the Corporate Debtor timely replied i.e. within 10 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is hereby dismissed as misconceived. Facts in brief: 3. The Corporate Debtor , sought to set up a Super Thermal Power Project at Barh with a capacity of 330 MW and invited bids for engagement of agency for transportation of Coal from Amrapali Mine to Bandag Railway Siding and loading of Coal into Indian Railways wagons for NTPC Barh II (2x660MW) through RCR mode from prospective bidders. The Appellant/ Operational Creditor participated in the said bid and a Contract Agreement dated 30.06.2016 was entered into between the parties for the period 19.03.2016 to 18.03.2017 for a bid amount of ₹ 2,11,95,00,000/-. It is stated that the Operational Creditor completed the contract on 26.04.2018, with the satisfaction of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. All these correspondences clearly indicate that the Operational Creditor failed to supply the requisite coal to the Siding as mentioned in the Purchase Order, therefore according to Clause 3.2 of the Purchase Order, the penalty shall be paid towards the short supplies of the coal as required under the Purchase Order 34. In the backdrop of the factual scenario of this case, it is not the case of the Operational Creditor that it has not short supplied the coal and it is not also the case of it that penalty need not be paid in the event the Operational Creditor failed to supply coal to the Siding as mentioned in the Purchase Order 13.04.2016. 6. The Learned Counsel sought for these two Paragraphs to be expunged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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