TaxTMI 
TaxTMI 
2017 (6) TMI 836
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....ncorporated on 25.06.2008. Copy of the Certificate of Incorporation with the Memorandum and Articles of Association is at Annexure II-A. Facts 2. It is stated that the Corporate Debtor had availed the consultancy service of the petitioner/operational creditor in relation to awarding of a project for developing and executing the transmission system at Mainpuri and associated works on a build, own, operate and transfer (BOOT) basis (Project) bids for which were invited by the Uttar Pradesh Power Transmission Corporation Limited (UPPTCL). The Corporate Debtor entered into a Service Agreement dated 8.7.2010 (for brevity the Service Agreement) with the petitioner. Under the terms of clause 3 of the Service Agreement, the Corporate Debtor undertook to pay the applicant total amount of Rs. 84 crores towards consultancy for the services rendered along with all taxes such as service tax etc. to be paid over and above the said consultancy fee. Copy of the agreement is Annexure II-C. The project was awarded by UPPTCL to the Corporate Debtor on 05.07.2011. As per the terms of the agreement, the amount of operational debt was payable by the Corporate Debtor by the later of the following: ....
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....respondent-corporate debtor and have also perused the records with their able assistance. 7. The first and the foremost issue that needs to be discussed is whether the instant petition can be maintained, the petitioner having already taken recourse to the provisions of Section 9 of the Code against SEUPPTCL and filed a petition before the Allahabad Bench of NCLT? The answer has to be in negative. 8. Learned senior counsel for the respondent-corporate debtor during the course of arguments, handed over copy of the petition filed in Allahabad Bench of NCLT. The factum of filing of the said petition against SEUPPTCL by the applicant was not disputed by the learned applicants' counsel. That petition was filed on the basis of a demand notice dated 21.12.2016 in Form 3 of the Rules, reply to which was sent by SEUPPTCL on 3.1.2017. We are of the considered view that parallel proceedings on the version of a contradictory claim would not be maintainable. Before the Allahabad Bench, the amount in default is claimed to be Rs. 59,20,49,559/- by adding the other charges like direct and indirect taxes over the amount in default of Rs. 38 crores as agreed on the basis of the Final Settle....
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....7.2010. In this agreement, it is clearly stated that the project was completed as stipulated in the Service Agreement and that the final closure of the project has been achieved/completed. We find that the Final Settlement Agreement, stipulates clearly that the amount for the services is to the operational creditor is to be paid to the tune of Rs. 38 crores. The exact terms of Final Settlement Agreement Annexure II (D) are:- "SEUPPTCL shall make the payment of Settlement Amount to Mr. Dassani as under: (i) a sum of Rs. 2,00,00,000/- (Rupees Two Crore Only) on or before execution of these presents (the payment and receipt whereof Mr. Dassani doth hereby admit and acknowledge); (ii) balance amount of Rs. 36,00,00,000/- (Rupees Thirty Six Crore Only) ("Balance Payment") shall be paid in 12 (twelve) equal monthly instalments commencing from Trigger Date and in the manner set out in Schedule A hereunder written." 12. The learned counsel for the petitioner would further contend that though it is stipulated in the agreement that a sum of Rs. 2 crores was acknowledged by the petitioner, but in fact no such payment was made and the respondent has not placed on ....
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.... IB proceedings as harsh. Here in this case, the Debtor company failed to pay for three years since now, after three years, it is saying that Operational Creditor cannot file this case as it remained silent from March 15, 2014. Can it be an argument to say that since the Operational Creditors did not initiate any proceedings until before filing this Insolvency Petition, they are not supposed to pursue the remedies available to them before the case is hit by limitation? It can't be like that. Therefore, this Bench has not found any reason in the argument of the Corporate Debtor Counsel." 14. It would, however, be important to refer to the order of Hon'ble Principal Bench of NCLT in CA No.(IB) 07/PB/2017 and CA No-(IB)08/PB/2017 titled One Coast Plaster v. Ambience (P.) Ltd. and Shivam Construction Co. v. Ambience Private Limited. View of the facts of that case, raising of the issue about quality of the work in the reply to the notice under section 8 of the Code was considered a notice of dispute dis-entitling the applicant for an order of admission and therefore, the application was rejected. 15. Before discussing the above contention, it would be appropriate to refer ....
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.... It is stated in the reply that the notice is contradictory to the previous notice dated 29.11.2016, wherein claim of Rs. 38 crores was made by the respondent, whereas now the claim is raised for Rs. 84 crores. It is stated that on the basis of Final Settlement Agreement, the respondent has obligation to pay. It is further alleged that the Final Settlement Agreement is void and non est on the ground of alleged fraud and misrepresentation. The respondent even stated in the reply that it signed the alleged Final Settlement Agreement as the petitioner exercised coercion, undue influence by threatening them to cause harm to the business of the respondent. 17. There was exchange of communication between the parties relating to the dispute even before the Final Settlement Agreement was entered. The respondent has sent reply dated 2.3.2016 (at page 45 of the paper book) in response to the notice dated 2.2.2016 sent by the petitioner. It would be relevant to refer to para nos.5 and 6 of the said reply, which reads as under: "5. Without prejudice to the above, it is stated that pursuant to the execution of said agreement, your client did not provide the services as agreed to our....
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.... 2010 is admitted and thereunder the payment having admittedly not been made, the petitioner has the remedy under the Code for an order of admission, as it was the intention of the legislature to rule out the frivolous defence. It was further contended that if the plea of fraud and coercion is raised, that is a triable issue, which need not be discussed in the summary procedure prescribed under the Code. 19. We are, however, of the view that in view of the case set up by the petitioner, the petition is liable to be rejected. The petitioner himself has stated against column No. I of part IV of Form 5 at serial number (d) that the Corporate Debtor had fraudulently induced the applicant to enter into a Final Settlement and Consultancy Agreement dated 15.03.2016, without having intention to honour the obligation. If the petitioner himself has raised the issue of fraud and inducement and there is also a counter defence by the respondent with regard to the fraud and coercion, it would be the fittest case to categorically hold that there is a 'dispute' between the parties, which would disentitle the petitioner for an order of admission. It is pertinent to mention that the Final....