AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 1500
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....ement, it is averred by the Operational Creditor that two agreements based on a Parallel Rate Contract Agreement bearing No. 07/OFC/MB/INTRAVILLAGE/TIJARIA/2017-18 dated 27.01.2018 and another Rate Contract Agreement bearing No. CF-IV/TDWSP/OFC/2017-18 was entered into between the Corporate Debtor and the Government of Telangana. It is further averred that the value of the contract of order procured is to the extent of Rs. 1,57,87,000/- and that the Operational Creditor also came to know that another order worth Rs. 1,20,00,000/- has also been procured by the Corporate Debtor based on the hard work of the Operational Creditor. 3. Perusal of the petition, shows that despite procuring these two orders commission it is alleged as envisaged under the agreement dated 26.12.2017 has not been paid by the Corporate Debtor which led to the claim for which, it is stated by Operational Creditor that a legal notice dated 20.03.2018 has been sent and subsequently, a notice under Section 8 of IBC, 2016 dated 16.05.2018 has also been issued to the Corporate Debtor and that the same had also been served on the Corporate Debtor. 4. Despite service of the notice of default, since no reply had been....
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....f Rs. 10,000/- and hence the contract was obtained from the said authority i.e. TDWSP out of the efforts of the Corporate Debtor and that it is not true that even in relation to Rupees five lakhs alleged to have been incurred by the Operational Creditor towards vendor registration cost being a part of the claimed amount. It is contended by the Corporate Debtor that no evidence has been furnished for incurring the said cost on behalf of the Corporate Debtor. It is also pointed out by the Corporate Debtor that there is no registration cost involved in relation to obtaining a contract from the said authority in any case. 9. It is also contended by the Corporate Debtor that the said amount of Rs. 5,00,000/- has also been paid in cash by the Corporate Debtor as it was misrepresented by the Operational Creditor that the said amount is to be incurred for registration cost and believing that the said representation of the Operational Creditor, the said amount has been parted by Corporate Debtor. It is brought forth in the reply as filed by the Corporate Debtor that the products which was sent to the authority is only PLB Duct and not as specified in the agreement as entered into between t....
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....t Pipe. It is represented that even for the tender for PLB Duct Pipe as evidenced from the information provided by RTI authorities, the contentions of the Corporate Debtor is misleading in this regard and are incorrect. The Operational Creditor has denied any illegality involved in the action of Operational Creditor to act as representative to procure contracts on the fulfilment of conditions and eligibility criteria as laid down by the Government for awarding contracts. The Petitioner/Operational Creditor also states in the rejoinder that the Corporate Debtor is adopting devious means to avoid the agreement dated 26.12.2017 after receiving the contracts/agreements from the Government. Thus, the claim of Rs. 14,98,700/- in the circumstances as well as a sum of Rs. 5,00,000/- in the case of vendor registration cost are payable of which default has been committed. 13. The matter was heard on 11.10.2018 and that at the time of oral submissions, learned counsel for the Operational Creditor took this Tribunal through the contract/agreement as entered into between the parties dated 26.12.2017 being Annexure 'B' of the typed set of application/petition. Learned counsel for the Operationa....
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....ied in the agreement dated 26.12.2017 has not been specified and instead of PLB HDPE Duct, PLP duct pipe have been wrongly mentioned and in the circumstances, taking into consideration the authorization which have been given by the Corporate Debtor obtained by the Operational Creditor through RTI clearly evidences that the agreement pertains to only PLB Duct of 40mm and not that of PLP Duct Pipe of 40mm x 33mm. Since the contract has been awarded for supply of PLB Duct pipe by the Government of Telangana and in these circumstances the Operational Creditor is entitled for the commission as agreed between the parties as well as Rs. 5,00,000/- (Five Lakh) by virtue of the agreement as one_time cost for vendor registration. 15. On the other hand, learned counsel for the Corporate Debtor seeks to rely on the same agreement and points out that the product clearly specified is only PLP Duct Pipes and not as otherwise sought to be construed by the Operational Creditor. It is also pointed out by learned counsel for the Corporate Debtor that both PLP Duct Pipe as well as PLB HDPE Duct are in existence in the market and that in relation to PLB Duct Pipe, the Corporate Debtor is established w....
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....ivery through (courier) and in the circumstances service through courier cannot be considered as proper mode of service and this Tribunal cannot take into consideration the said mode as sought to be established in the instant case as proper service of Section 8 notice. In relation to e-mail communication of Section 8 notice, it is pointed out by learned counsel for the Corporate Debtor that despite Operational Creditor being fully aware of the e-mail IDs of the whole time Director/Key Management Person of the Corporate Debtor to whom he could have communicated Section 8 notice, however, he had chosen to communicate to the e-mail as reflected in the master data deliberately. In this connection, reference to Annexure R-5 of the petition wherein it is pointed out several e-mails have been exchanged between the Operational Creditor on the one hand and the Directors of the respondent-company on the other are pin pointed. Learned counsel for the Corporate Debtor in the circumstances contends that hence the same cannot be considered as proper service through e-mail as well that in view of non-compliance with Rule 5 of AAA Rules and therefore there is non-compliance of the provisions of Se....
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....ent dated 26.12.2017 clearly points out in Clause 1(a) of the said agreement that "products "initially means PLP Duct Pipe of 40mm X 33 mm. The contention of the Operational Creditor that 'PLP Duct Pipe' should be construed as 'PLB HDPE Duct' which is sought to be denied by the Corporate Debtor obviously shows that there exists a dispute as between the parties. It is not for this Tribunal as held in Mobilox Innovations Private Limited case to consider whether the dispute is a bona fide dispute as applied to in the case of Companies Act, 1956 and it is enough for the Corporate Debtor to establish that there is plausible dispute in existence as between the parties. 21. Further, as rightly pointed out by learned counsel for the Corporate Debtor, it is required for the applicant/Operational Creditor to specify as to the date from which the debt fell due in Part-IV of the application which is not disclosed. Further the averments in Page 13 of the typed set of application containing part IV of the prescribed format contains the following: - "The commissions for Mr. Alok Jain's services ought to have been Rs. 15,78,700/-" clearly points out that the petitioner is not clear as to the am....