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TMI Blog2021 (2) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... ires various formalities to be completed before such payment could be released. It is also found that the direct payments were to be made for the works to be executed w.e.f. 10.09.2014 only and this arrangement has been made to complete the balance pending work. The main contractor has not raised the bills for the alleged outstanding amount as well as retention money nor any claim till then had been filed before the RP of FCIPL who was undergoing CIRP. Also the reply to notice of demand issued under Section 8 of IBC, 2016, alleged Corporate Debtor has clarified its stand and opposed the demand so raised. In the absence of privity of contract and non- compliances of the submission of invoices/bills by the main contractor along with nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been made Corporate Debtor in the present application. Services were rendered for fabrication and labour was also supplied in terms of work order issued by the said FCIPL. On the question of privity of contract between the Operational Creditor and Corporate Debtor, our attention was drawn to two letters written by alleged Corporate Debtor on 24.03.2015 and 22.09.2016. Thereafter, it was claimed that dates of default had been mentioned in requisite form at the relevant page and it was not barred by limitation. 3. Learned Counsel for the Corporate Debtor appeared and strenuously argued that there was no privity of contract between itself and said party. In this regard, the alleged Corporate Debtor referred to relevant contractual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor is two letters which are reproduced as under: (1) Ref No: OPa L/BDA/PR/IU O/085/14-15/Hardwin Date: 24-03-2015 To, M/s Hardwin Construction Pvt. Ltd. B-106, Kukreja Centre, Sector - 11, CBD Belapur, Navi Mumbai -400 614 Kind Attn: Mr. Anil Kumar Singh Subject: Assurance for payment to M/s Hardwin Construction Pvt Ltd. Reference- Work order nos. FCIPL/OPaL/Contracts /311 dtd. 26 Nov, 2014 (amended), FIPL/OPaL/contracts/325 dtd. 29 Aug, 2014 and FCIPL/0PaL/Contracts/328 did. 08 Sep, 2014 placed by M/s Femas on M/s Hardwirt construction Pvt Ltd. Dear Sir, With reference to the Work Orders mentioned above, placed by MIs FCIPL on you with regard to supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e work order mentioned above. Thanking You, Yours faithfully, K Satyanarayana CEO-OPaL Cc: 1. ED (Projects)-EIL 2. CFO -OPaL 3. GM (Projects)-EIL 4. Head (Projects)-OPaL 5. RCM-FCIPL 6. From the perusal of the above, we find sufficient merit in the claims made by and on behalf of the alleged Corporate Debtor as these letters merely state that the payment due to the work done by the main contractor i.e., M/s FCIPL through the Operational Creditor would be made directly to the Operational Creditor. In our considered view, this is the real substance of these two letters. Further, this also requires various formalities to be completed before such payment could be released. We also find that the direct payments w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents required as per the contractual provisions, the said letters of assurance do not result into a cause of action against the alleged Corporate Debtor. We also find that the Corporate Debtor is Public Sector Undertaking (PSU), hence, instead of pursuing its claim with the main contractor, the Operational Creditor has chosen to file this application. Normally, in these circumstances, we could have imposed costs for abuse the process of law but considering the fact that some correspondence executed between the Operational Creditor as well as alleged Corporate Debtor, we give benefit of doubt and refrain from doing so. 8. Before parting, we may add that the Operational Creditor filed copy of only one set of certain documents through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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