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TMI Blog2022 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... tor - Deduction on account of LD and Performance bank guarantee is a part of contractual terms and hence the Code is being a summary proceeding, the veracity of the statement cannot be examined like a trial court. Pre-existing dispute and chasing for payment also cannot be ruled out in this instant case. The Hon ble Supreme Court in TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED VERSUS EQUIPMENT CONDUCTORS AND CABLES LIMITED [ 2018 (10) TMI 1337 - SUPREME COURT ] has already held that IBC is not intended to be a substitute to a recovery forum and also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. The Appeal is dismissed. - Company Appeal(AT) (Ins)No. 1128 of 2020 - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of that and repeated reminders, the outstanding amount has not yet been cleared. The Appellant has issued a demand notice under Section 8 of the Code dated 26.04.2018 to the Respondent. The Respondent has replied to the demand notice vide their letter dated 04.05.2018. The Respondent has disputed the dues on various count such as Liquidated Damage (LD) issue, performance bank guarantee issue etc. c. The Appellant has also stated that it cannot be covered under pre-existing dispute as the Respondent has continue to place multiple orders between April, 2016 to December, 2017. The Appellant has filed petition under the Code with Adjudicating Authority on 02.11.2018 for unpaid Operational Debt amounting to ₹ 78,22,421/-. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has further observed that in case of dispute, the Adjudicating Authority is not the forum to examine and adjudicate the same claim and determine due and recoverable amount. It is not a substitute to a recovery forum. The operational debt is not free from dispute and has finally rejected the petition of the Appellant under Section 9 of the Code. 4. While the Respondent/CD has stated that in a project work changing of contractors do upset the programme. Hence, they have not changed the contractor and went on placing work order to complete the project work well in time. 5. They have also stated that the Appellant/OC failed to complete and delivere the contracted works within stipulated time as mentioned in the respective works orders l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsels for the parties, order passed by the Adjudicating Authority and available input on record and are observing as follows: a. The Appellant has no doubt issued a demand notice as required under the Code for initiation of proceedings under Section 9 of the Code. For brevity and clarity, we are reproducing Section 8 9 of the Code: Section 8: Insolvency resolution by operational creditor. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debt or copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt [by the corporate debtor, if available;] (d) a copy of any record with information utility confirming that there is no payment of an unpaid operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section. b. The Respondent, too , has also replied the same elaborating th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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