TaxTMI 
TaxTMI 
2020 (6) TMI 645
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....ly 26, 2019-(Rays Power Experts P. Ltd. v. Siwana Solar Power P. Ltd. [2020] 219 Comp Cas 516 (NCLT)). Hence, the present appeal by shareholder/director of suspended board of corporate debtor. 2. The operational creditor claimed that the corporate debtor had awarded the work order for supply, commissioning and service of solar power project for its commercial exploitation. The parties entered into an "engineering procurement and construction (EPC) agreement" ("EPC agreement" in short) dated May 1, 2014 for execution of the project. The operational creditor received part of the amount due for invoices raised for part payment and was in default. Notice under section 8 was issued on March 8, 2018 (page 233) and was served by speed post on the corporate debtor on March 13, 2018. The operational creditor claimed before the Adjudicating Authority that the corporate debtor gave no reply to the demand notice and also claimed that there was no dispute of unpaid operational debt raised by the corporate debtor. The operational creditor claimed debt of Rs. 2,82,48,963 along with interest to be in default. 3. The impugned order shows that the Adjudicating Authority directed operational credit....
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....nstallation as well as defects relating to installation and functioning of the project which was not giving the targeted output. There were frequent breakdowns and disputes had arisen between the parties which is evident from so many e-mails exchanged between the parties. 5. Learned counsel for the appellant referred to annexure 44 (page 485) where the Adjudicating Authority directed the operational creditor to disclose correspondence with regard to the document at page 183 of the paper book as was placed before the Adjudicating Authority. Learned counsel stated that the page referred by the Adjudicating Authority is at page 431 of the present appeal and submitted that this document itself showed that the corporate debtor had on October 20, 2016 conveyed to the operational creditor that although the corporate debtor appreciated the fast work done to complete by the deadline of December 31, 2014 but later on it had found that there were other pending works including bad quality of work done by the operational creditor to complete the project, which were pending and were to be completed by December 31, 2014. The e-mail gave details in this regard. Learned senior counsel for the appe....
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....onal creditor had unequivocally mentioned in paragraph 5 as under : "5. The deponent submits that with respect to further/additional correspondence, if, any, between the parties relating to the completion of the project, it is stated that presently no further communication is retrievable specially on account of grievances, if, any towards the commissioning of the project. However, as a bona fide conduct the operational creditor had already annexed readily available communications exchanged between the parties with the application on the subject. It is further stated that since the completion certificate has been issued with due satisfaction and even 84.21 per cent. of the payment towards completion of the plant had already been made by the corporation debtor to the operational creditors. The particulars of which are detailed at page No. 21 of the application, the raising of discontent by the corporate debtor against the commissioning of project is purely an afterthought and a spurious plea. In order to substantiate the view of the operational creditor put on reliance the apex court judgment in the matter of Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp Ca....
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....when specifically asked, the affidavit filed was intentionally vague with the only object of getting CIRP initiated. 7. It is argued by learned senior counsel for the appellant that section 8 notice was not sent to the registered office of the corporate debtor but was sent to another address as mentioned in the demand notice. The notice was sent to the e-mail address of then director of corporate debtor. The appeal claims that the partnership firm-Haryana Paper Card Industries in which the then director of corporate debtor was partner, was dissolved on March 31, 2018 and the assets of said firm went to continuing partner-Mr. Dushyant Kumar Tyagi. The other three partners retired from the firm and the premise-Plot No. 109, Sector 27/28, Hissar, Haryana, was still shown in the record of the Registrar of Companies as registered office of the corporate debtor which was asset of the said firm which stood transferred to Dushyant Tyagi. The appeal claims that relationship between Mr. Jagdish Parshad Singal and Mr. Tyagi strained. It is claimed that the notice under section 8 was served on e-mail of the then director. The operational creditor did not serve the petition and paper book on s....
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.... inseparable and the erection and installation of the project was linked with the operation and maintenance by the same operational creditor and the correspondence itself shows that there were structural problems as is apparent from (annexure 15) e-mail dated March 16, 2015 (referred supra). 11. Having gone through the matter and on considering record, there remains hardly any doubt that the earlier correspondence shows that between the parties there were disputes regarding installation of the project as well as functioning of the same. Although the project had been commissioned for which completion certificate had been issued, still if disputes had arisen between the parties regarding the installation and functioning of the project, the operational creditor merely pointed out certificate of appreciation dated April, 2015 issued and claims that once completion certificate had been issued, corporate debtor could not raise issues with regard to the quality of the work done. In fact, the record shows that there had been even a review meeting between the operational creditor and the corporate debtor and excerpts of which minutes have been placed on record by the corporate debtor at pa....