9911796707
TMI Blog2024 (11) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the RFP and Agreement between the Parties where payment was to be released after certification by TPA. The above indicates that there may be lapse of the Government of Goa in not appointing TPA so that TPA can verify the release of the quarterly payments to Appellant, but that cannot be a reason for put the Corporate Debtor in Insolvency by admitting Section 9 Application filed by the Appellant. On account of the lapse of Government of Goa in appointing TPA and non-payment of the dues of the Corporate Debtor, Appellant was free to avail the Clause 19 of the Agreement, but in the facts of the present case, when in spite of recommendation by Corporation to the DOIT to permit payment of 75% of the amount it is not the case that any sanction was granted by Department to pay the Appellant - the finding of the Adjudicating Authority agreed upon that no default can be said to have been committed by the Corporation so as to put it into Insolvency. When the RFP and Agreement provides a particular mode and manner of payment, non-payment by Appellant is a plausible contention raised by the Respondent in opposing Section 9 Application. There are no ground in the Appeal to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent questioning the initiation of exit management. x. Appellant filed a Writ Petition No. 1789/2021 before the High Court of Bombay at Goa challenging the initiation of exit management. In the Writ Petition, direction was also sought for payment of outstanding dues of Appellant amounting to ₹2,54,98,096/- as on 31.07.2021. xi. The Appellant issued a Demand Notice dated 27.01.2023, under Section 8 of the IBC claiming an amount of ₹2,90,67,407/- plus ₹76,40,425 as interest. xii. Letter dated 08.02.2023 and 28.02.2023, was written by Corporation to DOIT Goa seeking permission of Department of Information Technology, Electronics Communication (DITEC) to release 75% of the outstanding amount to Appellant and set aside 25% amount to be paid later on after receipt of Report from TPA. xiii. Application under Section 9 was filed by the Appellant on 08.04.2023. The Writ Petition which was filed by the Appellant being Writ Petition No. 1789/2021 was withdrawn by the Appellant which Prayer was accepted by the Hon ble High Court on 21.08.2023, with liberty to avail the alternate remedy. xiv. In the Section 9 Application Notices were issued to the Corporation but Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity did not commit any error in rejecting the Section 9 Application filed by the Appellant. Present is not a case where Insolvency could have been commenced. It is submitted that the Appellant has already filed the Writ Petition before the High Court of Bombay being Writ Petition No. 1789/2021, where outstanding payment was also prayed for. The dispute regarding payment was thus very much there due to which the Writ Petition was filed. Appellant chose to withdraw the Writ Petition at his risk. Present is not a case for initiation of any Insolvency Process. 5. We have considered the submission of Counsel for the Parties and perused the record. 6. There is no dispute between the Parties regarding the acceptance of bid of the Appellant for providing for e-Auction solutions. The Clause 4.7(19) which is relevant for the present case and has also been relied by the Adjudicating Authority is as follows: xix. The Government of Goa shall appoint the Third Party Auditor (TPA) to audit the functionality, data security, audit logs, VA PT and the availability of the application to the User. The payments to the bidder shall be subjected to the reports submitted by the TPA. All the necessary SLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that there may be lapse of the Government of Goa in not appointing TPA so that TPA can verify the release of the quarterly payments to Appellant, but that cannot be a reason for put the Corporate Debtor in Insolvency by admitting Section 9 Application filed by the Appellant. In the Reply, which has been filed by the Corporation, reference of Writ Petition No. 1789/2021, and one of the Prayers in the Writ Petition has also been referred to in Para 14 of the Reply. Para 14 of the Reply is as follows: 14. The Appellant filed Writ Petition No. 1789 of 2021 before the Hon ble High Court of Bombay at Goa against the Respondent and the DOIT challenging initiation of Exit Management and for recovery of sums due. The Appellant in the Writ Petition inter alia specifically prayed for: d. Direct Respondent No. 2 to remit the outstanding dues of the Petitioner under the Contract and the MSME Act amounting to Rs. 2,54,98,096.00 as of 31.07.2021; . True copy of amended Writ Petition No. 1789 of 2021 dated 20 August 2021 (without annexures) filed by the Appellant and the Reply dated 22 September 2021 filed by the Respondent (without annexures) before the Hon ble High Court of Bombay at Goa are a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
