TaxTMI 
TaxTMI 
2021 (5) TMI 581
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....cluding interest at 16% per annum on and from 30.06.2015. 2. This Petition/Application under section 9 is filed by Mr. James Hearty, Manager Finance on behalf of the Petitioner Company being duly authorised by Board Resolution dated 14.11.2019. Copy of the Board Resolution is annexed to the Petition. 3. 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 is a Company incorporated under Companies Act, 1913 and is engaged in crushing, screening, grinding, material handling and mineral processing equipment, serving the core sector industries mainly iron ore, coal, steel, zinc and copper, limestone and other mineral businesses. The Respondent is a company incorporated under Companies Act, 1956 engaged in designing, manufacturing, installing and maintaining machinery equipment and industrial plants and providing engineering consultancy services. (2) It is submitted that on and around April 2014, the Respondent approached the Petitioner for supply of Crusher-Ring Granulatore Type and Vibrating Grizzly Feeder, (hereinafter referred to as "the said Project"). ....
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....owledgement in respect thereof confirming delivery of the Notice are annexed to the Petition. (10) The Respondent responded to Demand Notice vide Letter dated 17.12.2019 purporting to be a reply. It is submitted that the contents of the Reply dated 17.12.2019 do not constitute notice of a pre-existing dispute as contemplated under the Code, 2016. Copy of the Reply is annexed to the Petition. Relevant contents of the Reply Notice are extracted hereinbelow: "You are aware that we had obtained a contract to construct a coal handling plant for Indian Power Corporation (Haldia) Limited (hereinafter "IPCL") and now known as Hiranmaye Energy Limited. IPCL's associate company-Shristi Infrastructure Development Corporation Ltd. (hereinafter "SIDCL") was paying some of the invoices raised under the contract. For the purpose of the contract, we were required to install a crusher-Ring Granulator Type and Vibrating Grizzly Feeder (hereinafter "the Project"). Your company had then represented to us that your company is capable of supplying, installing and commissioning the Crusher-Ring Granulator Type and Vibrating Grizzly Feeder in a timely manner and at a reasonable cost.....
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....ions. It has previously been brought to your knowledge that your company's liability was not limited to supply of completion of punch points, all of which had admittedly not been completed. Further, your company was required to provide soft copies and 7 hard copy sets of the operating and maintenance manuals, soft copies and 4 hard copy sets of the commissioning procedures, soft copies and 6 hard copy sets of the drawings for approval and soft copies and 4 hard copy sets of the test certificates within the timelines mentioned in the purchase order. None of these terms were complied with. ......For the sake of brevity and keeping in mind the limited purpose of this reply of only bringing to your company's notice the existence of a dispute as required by the Code, we have not specifically traversed/controverted any of the allegations and claims made in the demand notice. We reserve our right to do so traverse the same should you choose to initiate corporate insolvency proceedings under the Code against us. Non-traversal of the allegations and claims made in the demand notice shall not be deemed as an admission of the same." (11) The Petitioner refutes the cl....
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....Limited for whom the subject equipments has been supplied to sort out various pending issues and pending supply payments including yours, which is likely to happen during the week starting 7th Nov-2016. Thanking you for your kind co-operation" Email dated 02.02.2017 is extracted below: "As informed to you, we had a meeting with Chairman and Director at IPC(H)L, Kolkata. We explained the whole scenario of promises made to our vendors for payments. They have given a patient hearing on our pleas. IPC(H)L has assured us, they will go through all such cases and resolve the matter at the earliest. Kindly bear with us. We may be required to meet them jointly in this connection. We expect your kind co-operation in the matter with sincere thanks." 4. The Respondent Company has filed Statement of Objections to the Petition seeking dismissal of the petition with the below stated contentions: (1) It is submitted that the financial health of the Company and is good and its assets are sufficient to meet its liabilities. (2) It is submitted that the Application under section 9 of the Code, 2016 is incomplete. The Applicant has suppressed th....
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....e Respondent. The Respondent made no profit on the supplies made by the Applicant as IPCL/SIDCL reimbursed the Respondent on actual paid to the Applicant. The Applicant has not produced the complete set of the Purchase orders. The Applicant has not produced the complete set of the purchase orders. The Applicant has not produced the complete set of the purchase orders along with the application. Supplies were to be made at IPCL/SIDCL site and for use by IPCL/SIDCL and payments were also to be made by IPCL/SIDCL through Respondent. Copy of Purchase Order dated 19.05.2014 containing terms and conditions is annexed to the Objections. (8) The Applicant was required to also supply a supporting structure for the vibrating grizzly feeder (VGF) under the Purchase Order and was to do so within the timeline stipulated therein. However, the Applicant failed to deliver the same despite several reminders. Copy of the email dated 13.10.2015 sent by the Respondent to Petitioner seeking immediate action for supporting tool to VGF is annexed to the Objections. (9) It is submitted that due to failure on the part of Petitioner to supply the Supporting Structures, the erection schedul....
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....DCL and the Respondent wherein it was agreed that IPCL/SIDCL would make direct payments to Applicant as the Applicant insisted on such arrangement. The Applicant has undisputedly earned received Rs. 25,00,000/- from IPCL/SIDCL as on 17.10.2015. Email dated 17.10.2015 which states that IPCL will delay payment makes it clear that payments were made by IPCL directly to Applicant. Copy of the email dated 17.10.2015 is annexed to Objections. Under these circumstances the Respondent is not under an obligation to pay the alleged claims as all the claims, if any, lie against IPCL/SIDCL. The only recourse is a suit for money recovery. That initiation of instant proceedings against the Respondent and without IPCL being made a party is bad in law and ought to be dismissed at the threshold. (13) It is submitted that there is a dispute relating to quality of Petitioner's service and the breach of representations made by it, which constitute a 'dispute' under the Code, 2016. The dispute has been raised with the Applicant vide email dated 13.10.2015. (14) It is submitted that COP No. 295 of 2016 filed before the Hon'ble High Court of Karnataka for winding up of t....
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....rder is addressed. The Respondent, vide letter dated 25.05.2015 signed by the CEO of Respondent requested to dispatch the materials to M/s. India Power Corporation (Haldia) Limited, on behalf of M/s. Scorpio Engineering Pvt. Ltd. as per the dispatch instruction sent. (3) Despite acknowledging the debt, the Respondent failed to discharge the debt. Demand Notice dated 02.12.2019 under the IBC was issued by the Petitioner. That vide reply dated 17.12.2019, the Respondent for the first time referred to a dispute purportedly communicated vide email dated 13.10.2015. It is submitted that there is no dispute indicated in email dated 13.10.2015 to the contrary, there are several emails acknowledging the amounts due. (4) Further, the Respondent's contention that Rs. 25 Lakh was paid to the Petitioner by a third party, and therefore it is that 3rd party that is liable to make payments to the Petitioner is entirely false. (5) It appears that due to some internal arrangement between the IPCL and the Respondent, IPCL has made certain payments to the Petitioner. However, the Petitioner is not bound by any such arrangement. There is no agreement, minutes of meeting ....
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....here for better understanding of the matter. "Dear Sir, Please confirm the supply/manufacturing status of supporting stool and hood cover for VGF along with foundation bolts, as we have already received the Crusher & VGF but its supply is still not received at site. Awaiting the same as Civil front is expected to be handed by end of this month." Another email on 13.10.2015 was issued by Respondent is extracted below: "Dear Sir, Please refer to the trailing mail & request your immediate action for supply of Supporting stool to VGF along with fixing bolts, (which is under your scope as per the MOM dt. 27-2-15 & 28-2-15 at our HO, Bangalore) Our Site work is held up. Your immediate action on this will be highly appreciable Matter most urgent". 8. Letter of Intent for manufacturing, supply & Transportation of Fabrication items required for CHP Plant at IPCL, Haldia dated 01.06.2016 by Respondent to Saikrupa Industries to establish that due to the unsatisfactory work of Petitioner, the Respondent was constrained to get the work done from others. However, it is also seen that the Respondent has categorically admitted to....