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TMI Blog2019 (10) TMI 1476X X X X Extracts X X X X X X X X Extracts X X X X ..... te is inclusive and not exhaustive. Dispute has been given wide meaning so as to cover all disputes on debt, default etc. and not be limited to only pending suit or a record of a pending arbitration - there is also no dispute that this is not the forum to examine and adjudicate as to what extent the claim of the petitioner is admissible as due and recoverable. Neither the Tribunal in the proceedings under Section 9 will examine the merits of the respective disputes. Moreover, even the adequacy of dispute is not to be seen. It is only to be seen whether the dispute raised by the corporate debtor qualifies as a 'dispute' as defined under sub-section (6) of Section 5 of the Code. Whether there is an existence of a dispute between the parties that would fall within the inclusive definition contained in Section 5(6) of the Code? - HELD THAT:- In the facts there appears existence of a genuine dispute between the parties. The respondent has also an offsetting claim. These are matters of trial and enquiry. Tribunal in the present proceeding cannot go into roving enquiry into the disputed claims made by the parties. This is not the forum to examine and adjudicate as to which po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any M/S NTPC GE Power Services Private Limited (CIN No. U 74899 DL 1999 PTC 101702) formerly known as NTPC Alstom Power Services private Limited was incorporated on 27.09.1999 having its registered office situated at 7 - Institutional Area, Lodhi Road, New Delhi - 110003. Since the registered office of the respondent company is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of the respondent corporate debtor. 3. The Applicant, M/S New Engineering Works, is a sole proprietorship construction firm, engaged mainly in mechanical construction work and has its office at 144, Narasingha Dutta Road, 1st Floor, Block-C, P.O. Kadamtala, Howrah 711101. The instant Application has been filed by Mr. Utpal Kumar Guha, being the sole proprietor and authorized representative of the applicant sole proprietorship firm. 4. It is the case of the applicant that the Respondent Company issued work order, inter-alia, on 10th June 2015 for carrying out Electrical Erection Works and electrical works with Project Narne GSECL UKAL ESP 2X200 MW at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upees One Crore Nineteen Lakhs Twelve Thousand Eight Hundred and Twenty-One only) and ₹ 23,59,966/- (Rupees Twenty Three Lakhs Fifty Nine Thousand Nine Hundred and Sixty Six only) both aggregating to ₹ 1,42,72,787/- (Rupees One Crore Forty Two Lakhs Seventy Two Thousand Seven Hundred and Eighty Seven only) were also raised during 19.04.2016 to 20.04.2018 for the additional work done. 10. It is also asserted that the Respondent Company issued the work completion certificate on 31/07/2017 to the Applicant certifying that the work assigned was completed to their entire satisfaction. 11. It is alleged that the Applicant approached the Respondent Company by way of several emails and telephone calls for the release of its outstanding payments but the respondent has failed to make payment in respect of the invoices submitted to them. 12. Consequently, applicant served a Demand Notice in Form 3 in accordance with Section 8 of the Code read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 dated08.03.2019 on the Respondent Company. It is submitted that the Respondent Company wrote a letter dated 18.03.2019 to the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk in question, nor was any extension of time sought by the applicants in writing, the applicant is liable to pay liquidated damages on account of delay. 19. Therefore, it is contended that it was rightful on part of the Corporate Debtor to withhold the liquidated damages as per clause 17.4 of the General Conditions of Contract which provides that the liquidated damages amount, if any shall be deducted from the payments under the contract or by invoking the contract perforrnance guarantee and/or otherwise . 20. It is argued that there is serious and genuine dispute between the parties and that the respondent has an offsetting claim. A letter dated 26th July, 2019 of the applicant asking Indian Overseas Bank to stop encashment of guarantee invoked by the respondent and the reply dated 30.07.2019 of the bank requiring to produce specific court orders for restraining payment of guarantee, have been placed on record. 21. The precise case of the respondent is that the operational debt in question is disputed and as the dispute has been raised much prior to the Section 8 notice, the present application filed under Section 9 of the Code is liable to be rejected. 22. Heard the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /0028 for ₹ 50 Lakhs dated 10.06.2015 and WO/15-16/0029 dated 03.10.2016 for ₹ 765.15 Lakhs including all amendments for carrying our services, inter-alia, Mechanical and electrical services ESP retrofit for U#3 4 for Ukai TPS. 2. The said purchase orders included, inter-alia the following clauses- a. Maximum liquidated damages would be levied @ of the contract value in case of WO 0028 and 20% in case of WO 0029 in case of delay in execution of works. b. Scope of services under this order shall also include all such services which have not been specifically brought out in the technical specifications read in conjunction with your offer but are necessary for the execution of work . 3. Work execution is delayed considerably, and LD was levied as per the provisions of the Purchase Order. The amount of LD was adjusted against 4. Further your additional work bills were not confirmed bu us and shall be deemed to be covered under Para 2b mentioned herein above, forming part ofpurchase orders, without costs. 5. As such there are no dues payable to you. 6. We also invite your attention for the resolution of the differences/ dispute as per purchase orders. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 33. Therefore, there is also no dispute that this is not the forum to examine and adjudicate as to what extent the claim of the petitioner is admissible as due and recoverable. Neither the Tribunal in the proceedings under Section 9 will examine the merits of the respective disputes. Moreover, even the adequacy of dispute is not to be seen. It is only to be seen whether the dispute raised by the corporate debtor qualifies as a 'dispute' as defined under sub-section (6) of Section 5 of the Code. 34. Therefore, the only issue before us is whether there is an existence of a dispute between the parties that would fall within the inclusive definition contained in Section 5(6) of the Code. 35. In the present case the respondent has disputed that the additional work bills dated 20.04.2018 amounting to ₹ 23,59,966/- and ₹ 1,19,12,821/- respectively have never been acknowledged an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r letter dated 24.07.2019 and your personal visit to brach today stop of encashment of letter of guarantee number 951271115000043 dated 10.09.2015 favouring M/S NTPC ALSTOM Power services limited, we request you to produce specific Court order upon our Bank restraining payment of Guarantee amount to the beneficiary, if not produced bank will be bound to make payment to the said beneficiary as per norms. Thanks regards Kumar Satyam Chief Manager 39. The aforesaid letter of the applicant shows that a request was made to Indian Overseas Bank to stop encashment of the bank guarantee invoked by the respondent. The bank guarantee invoked by the respondent company was for adjustment of the dues and therefore there appears to be clear dispute in respect of the operational debt in question. 40. In the facts there appears existence of a genuine dispute between the parties. The respondent has also an offsetting claim. These are matters of trial and enquiry. Tribunal in the present proceeding cannot go into roving enquiry into the disputed claims made by the parties. This is not the forum to examine and adjudicate as to which portion of the claims or counter claims are admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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