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TMI Blog2021 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor, substantiating that the 'debt' has become due and payable by the Corporate Debtor, this Authority would certainly not be able to ascertain the 'default' on the part of the Corporate Debtor. It is also seen that the Corporate Debtor has raised a 'dispute' in relation to the completion of the work on the basis on which the work has been progressed in relation to the Operational Creditor and also it is seen that the Operational Creditor was unable to complete the project within the stipulated time - it is also significant to point out here that it is not for the first time that the Corporate Debtor has raised the dispute in the reply to the Demand Notice. Also, it emerges from the series of e-mails exchanged between the parties show that there is a dispute between the parties in relation to the work done by the Operational Creditor. The Hon'ble Supreme Court of India in the matter of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT ] has clearly laid down that the test for determination for the Adjudicating Authority is to see at the stage of Admitting/rejecting the Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prove its Operational Debt and the list of documents which filed along with the Application are as follows; a) Deed of Agreement dated 18/05/2014 and LOI 23/04/2014 b) Running Account Bills c) Ledger Statement 4. The Learned Counsel for the Operational Creditor submitted that the Operational Creditor is in the business of execution of Civil construction works on contract basis and the Corporate Debtor had engaged the Operational Creditor under a Deed of Agreement dated 18.05.2014 for the purpose of construction of industrial building as required by the Corporate Debtor. 5. It was submitted by Learned Counsel for the Operational Creditor that the Operational Creditor had been raising running account bills during the course of construction activities and the Corporate Debtor had certified the same in acknowledgment thereby and in fact had made part payments towards it. The details of the bills raised by the Operational Creditor are as follows; 6. The Learned Counsel for the Operational Creditor submitted that however, the Corporate Debtor has paid a sum of approximately ₹ 60,00,000/- between the time period from 10.07.2017 to 25.06.2018 and the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Creditor that the Corporate Debtor has made a payment of ₹ 8,82,000/- on 25.06.2018 which is the last payment received towards the outstanding bills. Therefore, the claim of Operational Creditor is well within the period of limitation of three years. 12. The Respondent has filed the Counter. The Learned Counsel for the Respondent at the outset submits that the Respondent has been involved in the dairy business for past 37 years and handling only liquid milk, curd and butter milk and in the year 2014. It was submitted that the Corporate Debtor had decided to enhance the business in order to set up a manufacturing facility for which they had entered in to an agreement with the Operational Creditor for the purpose of the construction of the building. 13. The Learned Counsel for the Corporate Debtor at the outset submitted that the present Application is not maintainable in view of the fact that there is a dispute between the parties. It was submitted that the Corporate Debtor had communicated through email dated 22.11.2014 to the Operational Creditor and pointed out the slow progress of the work executed by the Operational Creditor. Further, it was submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forementioned clause nor sought damages from the Operational Creditor for the loss caused due to alleged delay. 17. The Learned Counsel for the Operational Creditor submits that the project was completed and handed over to the Respondent in the year 2016. As per clause 14 of the contract, the defects liability period is for 12 months from the date of virtual completion or occupation of buildings. The Respondent had not communicated about any defects to the Applicant during the defect liability period and even during this period the Respondent has made payments. 18. It was further submitted by the Operational Creditor that it has been maintaining running account of the Corporate Debtor for the transactions covered under the contract which are evidenced by the ledger account and the last payment of ₹ 9,00,000/- was received from the Corporate Debtor on 25.06.2018, out of which ₹ 18,000 was deducted towards TDS and balance ₹ 8,82,000 has been credited and the present application is filed on 22.09.2020 which is within three years from the date of acknowledgement and hence falls well within the statutory limitation period. As per Section 19 of the Limitation Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to understand the problems of client at this stage. You have no intention to save your and company image in the area where your HO is located. PI try to avoid a situation when works will have to be got done at your risk and cost. With deep sorrow and pity on the site management team. PI do something now or leave it . 22. Further, it is also seen that the Operational Creditor vide an e-mail dated 21.09.2019 has written to the Corporate Debtor as follows; Dear sir, Yesterday we have visited your premises as per the instructions given by our Managing Director, URCC and took a consolidated note on the defects said by your team. Please refer the list of defects identified in the attachment. We will start the work next week and will complete all within October 10th For your kind information. 23. Thus, a perusal of the aforesaid emails as exchanged between the parties would show that the Corporate Debtor had raised certain disputes in relation to the project executed by the Operational Creditor and that this Court, unlike a Civil Court cannot go into the aspect of whether the said defects as raised by the Corporate Debtor were rectified and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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