9911796707
TMI Blog2025 (4) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Applicant has been filed challenging the order dated 21.01.2025 passed by the Adjudicating Authority (National Company Law Tribunal) Mumbai Bench, Court-III rejecting IA No.712 of 2022 filed by the Appellant. 2. Brief facts necessary to be noticed for deciding the appeal are:- 2.1. Hindustan Petroleum Corporation Limited had floated a tender for construction of 3 x 500 MT capacity mounded storage vessels at Purnea LPG Plant and had issued Purchase Orders on special terms and conditions of the Contract. Various Purchase Orders were issued by Hindustan Petroleum Corporation Limited to the Corporate Debtor- 'Fabtech Projects and Engineers Ltd.' between 31.07.2018 to 09.07.2019 for construction of mounded storage vessels. On Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an order passed by the Adjudicating Authority in IA No.303 of 2022 as well as the order of this Tribunal dated 05.07.2022 in Company Appeal (AT) (Insolvency) No.716 of 2022 which judgment was fully applicable and has been erroneously distinguished by the Adjudicating Authority. It is submitted that the observation of the Adjudicating Authority that Resolution Professional never raised objection is not correct. Resolution Professional has by letter dated 20.11.2019 had requested that no liquidated damages be levied. It is submitted that after approval of the Resolution Plan, all claims stand extinguished. Respondent cannot deduct liquidated damages from final invoices without filing any claim. 5. Counsel for the Respondent refuting the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were subsisting on the day of Resolution Plan. No claim of Respondent was subsisting on the day of Resolution Plan, hence, there is no question of any extinguishment. Extension of 12 months' time was given for completion of the project, however, which extension did not provide for refund of liquidated damages already deducted. Mere extension of time by itself would not mean that Respondent has not suffered delay in the work but it was merely granting time for completion of the work. Judgment relied by Appellant of this Tribunal in "Indian Oil Corporation Ltd. vs. Manjeet Cotton Pvt. Ltd. & Ors.- Comp. App. (AT) (Ins.) No.716 of 2022" is distinguishable as the claim of IOCL was admitted by the Resolution Professional and dealt in the Resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the contract does not have any effect on the liquidated damages which were deducted from the invoices as per the terms and conditions of the Purchase Order. Insofar as liquidated damages which were deducted after 16.11.2021 it has been noticed by the Adjudicating Authority itself that the Respondent has refunded the amount of Rs.31,67,727.69/- which is noted in paragraph 14 of the order, which is as follows:- "14. As far as the liquidated damages deducted by HPCL is concerned, it is seen that during the pendency-of this matter; the Respondent/HPCL had refunded Rs. 31,67,727.69 being liquidated damages "deducted for the period after 16.11.2021 i.e. the date of approval of resolution plan by this Tribunal." 8. The reliance on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period during the CIRP which was deducted by HPCL, as per the contract between the parties. It is also seen that the order passed in IA/303 is distinguishable on one more aspect. The IOCL, in that case, had issued a letter cautioning initiation of proceedings against 'the Resolution Applicant to* recover its claim against which this Tribunal held that the "said claim has been duly treated in the Resolution Plan and IOCL cannot initiate any proceedings in respect to such claims." 17. Admittedly, the Respondent herein has ho pending claims against the Corporate Debtor and we see that no liability has been fastened upon the Applicant to make any payment towards the liquidated *damages. Therefore, *the"* order dated 20.04.2022 in IA/30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for completion of pending work." This Tribunal in paragraph 5 has made following observations:- "5. The order passed by the Adjudicating Authority clearly mentioned that all claims, liquidated damages, advances etc. and interest on advances up to the date of the Resolution Plan approved by the Adjudicating Authority stands extinguished and cannot be agitated by the Appellant in future. No exception can be taken to the aforesaid direction because the claim was up to the date of the approval of the Resolution Plan. In event, any future obligation arises of the Corporate Debtor/ Successful Resolution Applicant, it is open for the parties to take recourse in accordance with the terms and conditions and the order impugned cannot govern any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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