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TMI Blog2022 (1) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... and come to the conclusion that there is pre-existing dispute between the parties and rejected the Application under Section 9 of the IBC filed by the Appellant herein. The impugned order is set aside - appeal dismissed. - Hon'ble Judges Anant Bijay Singh, J. (Member (J)) and Shreesha Merla, Member (T) For the Appellant : U.K. Chaudhary, Sr. Advocate, Preeti Goel and Anubhav Goel, (CA), Advocates For the Respondents : Rishav Banerjee, Rajarshi Banerjee, Shambo Nandy, Arijit Mazumdar and Rajshree Banerjee, Advocates JUDGMENT Anant Bijay Singh, J. (Member (J) 1. This Appeal has been preferred by the Appellant (Operational Creditor) being aggrieved and dissatisfied by the order dated 10.02.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in C.P. (IB) No. 987/KB/2019 whereby and where under the Application filed by the Appellant/Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) was rejected holding that the Corporate Debtor (Respondent herein) in the case succeeded in proving existence of disputes. 2. The facts giving rise to this Appeal are as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, as regards Service Portion , it was not supported by Letter of Credits and hence payments of Running Account Bills were received late, as would be evident from the statement of payment received (Annexure-VIA at page 133 to 134 of the Appeal Paper Book). vii) The Appellant (Operational Creditor) Company from time to time has raised Running Account Bills for the value of the work done, a statement showing the details of Running Account Bills raised by the Operational Creditor upon the Corporate Debtor (Annexure-VII at page 135 to 145 of the Appeal Paper Book). The statement also shows the ad hoc amounts released by the Corporate Debtor from time to time, were all beyond then stipulated period of payments within which the Respondent/Corporate Debtor were to make payment to the Appellant/Operational Creditor. viii) The Appellant supplied the goods to the Respondent during the period March, 2015 to March, 2017 and also rendered/provided services towards installation of LP Piping System and Tank etc. at the project site of the Respondent during the period August, 2015 to June, 2018. ix) Further case is that the debt fell due for payment from time to time in the month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 under Section 8 of the IBC to the Respondent/Corporate Debtor (Annexure- XXII at page 194 to 208 of the Appeal Paper Book). xvi) Despite receipt of the legal notice, the Respondent did not release any payment, thereafter, the Appellant/Operational Creditor filed an Application under Section 9 of the IBC against the Respondent/Corporate Debtor and the same was rejected by the Ld. Adjudicating Authority on 10.02.2020. Hence this Appeal. Submissions on behalf of the Appellant 3. The Learned Counsel for the Appellant during the course of arguments and his memo of Appeal along with Written Submissions submitted that the Respondent/Corporate Debtor issued Two Letters of Award dated 25.11.2014 for Supply of Complete LP Piping Systems Packages (First Part) 3x150 MW TPP and also contract for Service of Complete LP Piping System Packages (First Part) for 3x150 MW TPP IPC(H)L Haldia Project (at page 112 to 132 of the Appeal Paper Book). 4. It is further submitted that the Appellant commenced the execution fully mobilizing, Plant, Machinery, Working capital, Man-power and facilities. The supply of pipes and other materials were against Letter of Credit (for short LC) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Reply Affidavit) valid upto 31.03.2019 as per proforma furnished by the Respondent and thereafter these Performance Guarantee also stood expired/lapsed automatically unconditionally without any claim. 10. It is further submitted that the Respondent is relying on various emails written during the year 2015 and September, 2016 in their Reply to the statutory Notice under Section 8 of the IBC. However, some letters pertaining to the period 2016 or for the year 2017 have now been filed for the first time while filing Reply to this Appeal which did not see the light of the day earlier. 11. It is further submitted that the Appellant relying on the Judgment of this Appellate Tribunal in the case of Unistill Alcoblends Pvt. Ltd. Vs. India Brewery Distillery Pvt. Ltd. Company Appeal (AT) (Insolvency) No. 162 of 2019 held as follows: 7. Considering the documents pointed out by the leaned Counsel for the Appellant, and the fact that the learned Counsel for the Respondent is unable to show us any document before the Notice under Section 8 was issued which would indicate that there was any dispute communicated by the Respondent to the Appellant, we find that the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,60,25,195/- which the Respondent is also entitled to recover from the Appellant. 18. It is further submitted that the Appellant has admittedly violated multiple contractual obligations while purportedly attempting to perform the same and these breaches and/or omissions were duly notified by the Respondent multiple times via written correspondence exchanged between the parties hereto much prior to the issuance of statutory notice of demand under the IBC. 19. It is further submitted that the Ld. Adjudicating Authority had noted the same and based on these rejected the Application filed under Section 9 of the IBC. The Ld. Adjudicating Authority had taken note of the email dated 27.03.2015 sent by the Respondent (at page 52 of the Reply Affidavit), HEL's email to Appellant on 30.03.2015 (at page 53 of the Reply Affidavit), HEL's email to Appellant on 06.04.2015 (at page 54 of the Reply Affidavit), HEL's email to Appellant on 30.04.2015 (at page 56 of the Reply Affidavit), HEL's email to Appellant on 24.06.2015 (at page 60 of the Reply Affidavit), HEL's email to Appellant on 27.06.2015 (at page 59 of the Reply Affidavit), HEL's email to Appellant on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 3 years from scheduled date of completion under the contract, so issuance of completion certificate will not prohibit them from raising the dispute, this fact has also been taken note by the Ld. Adjudicating Authority. 25. It is further submitted that the pre-existing dispute between the parties evident from the emails much prior to issuance of statutory notice under Section 8 of the IBC. The Ld. Adjudicating Authority through the impugned order rightly rejected the Application under Section 9 of the IBC filed by the Appellant/Operation Creditor. Therefore, no merit in the instant Appeal. The Appeal is fit to be dismissed. FINDINGS 26. After hearing the parties and having gone through the pleadings made on behalf of the parties, we are of the considered view that the following facts are admitted in the instant Appeal. The Respondent has issued two Letters of Award dated 25.11.2014 for supply of Complete LP Piping System Packages (First Part) 3 x 150 MW TPP and also contract for Service of Complete LP Piping System Packages (First Part) for 3 x 150 MW TPP IPC (H) L Haldia Project . There were two Letters of Award (i) one for Supply Portion and another (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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