TaxTMI 
TaxTMI 
2020 (4) TMI 8
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.... Authority (National Company Law Tribunal), Hyderabad Bench, Hyderabad by impugned order dated February 20, 2019 rejected the application with the following observations : "Findings 14. It is not in dispute 25 per cent. of the retention money to be paid after erection, commissioning and trial run. The rest of the purchase order was completed. 75 per cent. of the amount covered by the purchase order was also paid. The contention of the operational creditor, as completion of project was delayed only on account of corporate debtor, then it is entitled to claim retention money as per the terms of payment. It is the duty of the operational creditor to prove that there is a debt due by the corporate debtor and it has committed default. The money deducted towards 25 per cent. of the purchase order under each invoice was calculated and contended this amount became due and payable by the corporate debtor in terms of purchase order. The contention of counsel for the operational creditor that it is not in dispute corporate debtor had not paid 25 per cent. of the retention money. However, the corporate debtor is contending that the operational creditor has not completed the r....
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....thorities of the Government of Maharashtra. Therefore, the corporate debtor cannot be found fault for the delay. 18. The operational creditor becomes entitled to retention money of 25 per cent. or 20 per cent. as the case may be only if it completes the terms of purchase order, especially erection, commissioning and trial run. This part of the contract was not completed. The amount becomes due only if operational creditor completes the remaining part of the purchase order. Till then, the amount does not become due. When the amount does not become due, then there is no question of default. When there is no debt within the meaning of section 3(12) of the IBC, then there is no question of default. Thus, operational creditor failed to establish that there is a debt due and payable and it was committed default. As far as the IBC is concerned, the operational creditor to establish debt as well as default. When these two are not established then petition cannot be admitted. Thus, the petition is liable to be rejected." 2. Learned counsel appearing on behalf of the appellant submitted that the Adjudicating Authority cannot give a specific finding with regard to claim and counte....
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....t erection of equipment within 30 days was payable. Followed by 13 per cent. payable at the stage of trial, commission and completion of three months trial operation of equipment of 30 days. If commissioning gets delayed from the side of "corporate debtor" beyond six months, then 8 per cent. was to be released and 5 per cent. amount was required to be retained till completion of commissioning. 7. The respondent accepted that the appellant raised the invoices and stated that it had deducted 12 per cent. amount against erection and 13 per cent. amount to be payable after completion of the trial operation. In all the invoices, the appellant has lastly shown an amount which is stated to be "now balance payable". Further according to the respondent, it has paid the entire amount as shown as "now balance payable" by the appellant in each of the invoices and total invoices amount of Rs. 8,93,47,704. The amount equal to 75 per cent. of the said amount comes to Rs. 6,70,10,780 but the respondent has actually paid more than the same, i. e., Rs. 6,67,58,301 to the appellant as per details given below : 8. In the aforesaid background plea has been taken that there is no unpaid invoice, i....
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.... Itkheda, Aurangabad - 431 005. : (0240) 2376648/49, 3205444, Fax: 2376656, E-mail: [email protected]. Rel. No. Prasad-Sheeharf JV/MLS/2013-14/01. Date: 06/07/2013 PURCHASE ORDER L To, M/s. Jyotimited, Narubhai Amin Marg Industrial Area, PO Chemical Industries, VADODARA-390.003, Dear Sir, Sub: Purchase Order for Supply of Mechanical & Electrical components (VT Pump sets and allled equipments) for 'Construction of Majalgaon Lift Scheme from Loni Sawang Barrage (Sadela Village) Tal Majalgaon Dist Bead" under GMIDC. Ref: 1) Your Offer Dt. 24.07.2011 2) Our Letter of Intent Ref No. PSJV IMLS/2012-13/15 Dt. 19/04/2012 With reference to your offer & our latter of intent, we are pleased to place this Purchase Order for Supply of Mechanical & Electrical components (VT Pump sets and allied equipments) for "Construction of Majalgaon Lift Scheme from Loni Sawangi Barrage (Sadola Village) Tal Majalgaon Dist Beed" under GMIDC. SCOPE OF WORK: Complete Design, manufacture and supply of Pumpsets, electrical equipment and EOT crane etc. as per BOQ & specifications for Majalgaon LIS on turnkey basis. Attached As ....