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TaxTMI 
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TaxTMI 
2021 (5) TMI 541
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....,00,000 (Rupees Ninety Lakh only) along with an interest of Rs. 24,85,479.45 (Rupees Twenty Four Lakh Eighty Five Thousand Four Hundred Seventy Nine and Paise Forty Five only) calculated at 18% p.a. till 03.02.2020. Copies of the Acknowledgment of Registration of Firm of the Petitioner, workings of computation of the claim amount and authorisation letter dated 03.08.2019 authorising Mr. K. Sriharsha Shashank to file present case are annexed to the Petition. 2. Brief facts of the case, as per the Petitioner, which are relevant to the issue in question, are inter alia as follows: (1) It is submitted that the Petitioner and the Respondent entered into an Agreement for Sale & Purchase of Power Plant Equipment dated 23.07.2018, wherein the Petitioner agreed to purchase the Plant and Machineries of the Biomass Power Plant located at Chikkajantakal Village, Koppal District, Karnataka for an agreed sale consideration on as is where is basis. Petitioner undertook to dismantle the said Plant and Machineries once the Respondent obtained NOC from Indian Renewable Energy Development Authority (IREDA) and issued a Letter of Authorization to that effect. Copy of the Agreement for Sale & Purcha....
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.... Respondent issued Reply Notice dated 27.08.2019, which is annexed to the Petition. Relevant portion of the reply is reproduced for the sake of convenience: "It is true that you had entered into an Agreement for sale and purchase of power plant equipment on 23.07.2018 with my client and in terms of the said agreement under clause 2, you had specifically agreed to make the payments as per the time schedule mentioned therein. You had utterly failed to adhere to the said schedule and did not make the payment of the second installment as agreed upon. Further, my client also states that you had failed to even reply to his various mails and follow ups. Finally having fed up with your attitude and also the deliberate breach committed by you, my client through email dated 15.09.2018 very categorically mentioning the dates and the default committed by you, had specifically averred that the agreement stands cancelled and the advance already paid is forfeited. There was no reply to even this mail. My Client states that after the email they had also filed the caveat petitions before the Hon'ble Courts at Gangavathi in State of Karnataka. Having received even the caveats, you had never ....
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.... 50 Lacs and submit the Post Dated Cheques (PDC) for Rs. 50 Lacs dated 30 August 2018, Rs. 1.0 Cr each for 30.09.2018 and 31.10.2018 before starting of dismantling of plant and machinery. 4. IREDA shall charge interest on outstanding amount till the full repayment of loan outstanding is done..." (2) It is submitted that inspite of the NOC, the Petitioner did not make the payments as per the Agreement. Having no choice, the Respondent cancelled the agreement and as per the terms agreed vide email dated 26.09.2018. Copy of the said letter is annexed to Objections. Relevant portion of the letter is extracted below for ready reference: "Please refer to our agreement cited above (Ref. 1), we would like to inform you that, as per agreement you have to pay second installment within 35 days from the date of NOC issued by IREDA for dismantling of plant and machinery. We have submitted NOC from IREDA dt. 16.08.2018 (Ref. 2) through mail to you. Our Mr. Sharma has called you several times with regard to payment of 2nd installment but there is no response from your end. As per the telephonic conversation and the personal discussion you had with our Mr. Sharma on 23.09.2018, you have ....
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.... IREDA, the said material was only valued at Rs. 3 Cr. by Respondent. However, the Respondent had agreed to sell the said for Rs. 3.80 Crore to be paid in instalments. By not disclosing the NOC, the Respondent sought to defraud the Petitioner and siphoned off. Compliance of terms of the NOC by paying Rs. 3 Cr to IREDA meant paying more than the amounts agreed as Rs. 90 Lakh was already paid to the Respondent. (4) It is also submitted that the decision of KLA Construction Technologies Private Limited v. CKG Realty Private Limited has no bearing on the instant petition as the issue before Hon'ble NCLAT was whether non-payment of mobilization advance amounts amounted to operational debt. However, the present case is not one of non-payment of advance monies, but of refund of monies as per an Agreement, on failure of the Respondent to adhere to the terms mentioned in the said Agreement. (5) It is submitted that the law laid down in K. Kishan v. M/s. Vijay Nirman Company Limited and Mobilox Innovations Private Limited v. Kirusa Software Private Limited states that the existence of dispute and/or a suit or arbitration proceeding must be pre-existing i.e. the dispute must exist bef....
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.... argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However in doing so, the authority does not need to be satisfied that the defence is likely to succeed so long as the dispute is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application, Moreover the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. It must exist before the receipt of the demand notice or invoice" 9. The Respondent has not produced sufficient documentary evidence supporting its claim that the NOC was communicated to the Petitioner and the communication regarding cancellation of agreement on account of non-payment of requisite amounts by the Petitioner to the Respondent. In absence of documentary evidence of communications in relation to disputes, the Respondent's plea appears to be bald and an attempt to avoid payment of dues. Further, the Respondent has failed to produce latest balance sheets showing that the company is an ongoing concern generating revenue and solvent. 10. The Petitioner has produced NESL Certi....