TaxTMI 
TaxTMI 
2020 (5) TMI 346
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..... The Applicant is of the view that its claim is based upon an Agreement arrived at between them. A copy of the said Agreement dated 20-7-2015 is annexed to the Application. 4. A brief history of the transaction between the Applicant and the Corporate Debtor is as follows: a. The Petitioner enters into an agreement with the Corporate Debtor on 22-7-2015. As per the agreement, the Petitioner had provided the services i.e. filling with available earth including, watering, ramming, consolidating and dressing complete at KM Toll Road NH 8A in state of Gujarat and related transportation to the Corporate Debtor. RS Infra Project, in that sense, is the sub-contractor of the Corporate Debtor. b. The Petitioner claims that on demand and request of the Corporate Debtor the Petitioner from time to time supplied the goods and raised various invoices on the Corporate Debtor. The payment/part payment paid by the Corporate Debtor were from time to time duly debited and credited on regular basis on the running account maintained by the Petitioner. 5. The Petitioner sent the demand notice under section 8 of the code on 10-9-2018 to the Corporate Debtor demanding payment of R....
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....den removal by the Sub Contractor shall be made in the basis of the actual work executed. The actual work executed shall be calculated on the basis of volumetric Measurement. c. The procedure for volumetric measurement shall be as below: All the works in progress will be jointly measured in situ by representative of the Engineer-in-charge and the Sub Contractor's agent progressively. Such measurements will be recorded by the engineer-in-charge or his authorized representative and signed in token of acceptance by the sub-contractor of its authorized representative. d. The bills submitted by the Sub contractor shall be processed only after getting it verified for payment of wages and other claims or payment of whatsoever nature mandatory under various statutory provisions. The outstanding claims or dues shall be deducted from the bills before making the payment. e. The Sub-Contractor shall furnish/engage all equipment, labour material, competent personnel infrastructure etc. to perform the scope of work specified also with fulfilling all obligations specified by the contractor. The sub contactor shall direct, supervise and ....
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....ork was required to be undertaken as per the terms and conditions and specifications of the contract executed with the authority with the said contractor. d. That during the construction of the road or stretches of the road, regular inspections were undertaken by the said authority the payments were released to the said contract only after due certification and verification of the work done submitted by the contractor. e. That the Petitioner has produced certain invoices which were never served upon the Corporate Debtor because the petitioner has not done any work under the said invoices. f. The petitioner relying upon the alleged confirmation of accounts the Corporate Debtor submitted that the signature and the rubber stamp affixed in the said accounts are forged the corporate debtor never signed and stamped any confirmation of accounts. g. The corporate Debtor has also filed criminal complaint with the Powai police station. 9. The petitioner through its rejoinder dated 6-6-2019 denied the contents of the reply filed by the Corporate Debtor that: a. It is submitted that the Petitioner raised the invoices only after the due completion....
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....ed representative and signed in token of acceptance by the Sub Contractor or its authorized representative." It is clear from the above that the Engineer-in-Charge of the Contractor (here, the Respondent) and the representative of the Sub Contractor (here, the Petitioner) were to jointly do the volumetric measurement and thereafter submit the Bill. No such joint measurement of work done has been submitted before the Bench. The Respondent mentions that since no work was done, therefore, there was no question of a joint measurement of work. (iii) Para 7.1 of the 'LoI' deals with manner of payment and mentions the following:- "7.1. The bills submitted by the Sub Contractor shall be processed only after getting it verified for payment of wages and other claims or payment of whatsoever nature mandatory under various statutory provisions. The outstanding claims or dues shall be deducted from the bills before making the payment." From Para 7.1 quoted above, it is clear that the Bills of the Sub Contractor (here, the Petitioner) will be processed after payment of wages to the workers made by the Sub Contractor is verified. The &....
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....nch, therefore, finds merit in the contention of the 'Respondent' that no occasion ever arose of any payment as there was no work done by the Petitioner and therefore, no dispute was raised by the respondent before the issue of the Demand Notice. (vii) The Corporate Debtor on Affidavit has mentioned that the work to be performed by the Petitioner related to "Filling with available earth including watering, ramming, consolidating and dressing complete at KM Toll Road NH-8A in the state of Gujarat and Transportation". The Corporate Debtor mentions that this work is at a site viz. Nh-8A in the State of Gujarat. As per the mandatory NHAI guidelines, earth works are to be carried out following certain procedure which is that after the work is awarded, the location wherein work is to be done is identified and informed to NHAI and a Request for Inspection (RFI) is raised by the contractor/ sub contractor at site. Thereafter the source of material i.e. area from where the soil is excavated and brought is identified and informed to NHAI. NHAI officials thereafter approve the specific area known as "Borrow Area" from where the material is brought onto the road site in order ....