TaxTMI 
TaxTMI 
2022 (5) TMI 435
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....l Creditor' under Section 9 of the Code against 'M/s. Satec Envir Engineering (India) Pvt. Ltd.'/the 'Corporate Debtor', observing as follows: 13. The Bench notes that in a letter dated 20.12.2018 addressed to IOCL, the Petitioner who are the contractors themselves had mentioned to IOCL, that the racking material due to exposure to rains and dust during installation and because of negligence and improper storage had corroded. Therefore, the Petitioner had strongly recommended that IOC should not use the racking system as the same is not certified for safe use. 14. It is clear to the Bench that and as admitted by Petitioner that there are serious problems with the racking system installed by them and also admits that the system has not yet undergone a safety audit and, therefore, was a non-certified weak racking. The Petitioner itself requested IOCL "not to use the system any further as the same has not been certified for safe use". The Petitioner ends the letter by saying that "Hope u find this in order and would ensure that the safety alert being raised is taken seriously and necessary correctives are undertaken without any further delay." The Bench notes that in....
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....ing out of different agreements or work order, having different amount and different dates of default, cannot be clubbed together for alleged default of debt, the cause of action is being separate. For the said reasons, we hold that the joint application preferred by appellant under Section 9 is defective, as distinct from incomplete, and, was not maintainable." 2. Submissions of the Learned Sr. Counsel appearing on behalf of the Appellant: * It is submitted that the 'Corporate Debtor', engaged primarily in executing Orders from the Government and the other customers for Warehouse Development and three fabrications work Project approached the Appellant for supply and installation of a Multitier Racks for Heavy Duty Shelving for two separate work sites for the end user i.e., Indian Oil Corporation Ltd. (IOCL) at Haldia, West Bengal and Bongaigaon, Assam respectively. * A Purchase Order dated 18/05/2017, for the supply of Multitier Heavy Duty Shelving amounting to Rs.1,43,94,240/- was issued for the Haldia Project along with a corresponding Work Order dated 18/05/2017, for the installation of the Multitier Heavy Duty Shelving amounting to Rs.8,05,000/-. The payme....
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....email stating that they cannot go beyond the Contractual Value mentioned in their Work Order. On 13/02/2018, the Appellant addressed an email to 'Engineering (India) Ltd.' (EIL) who were the Project Management Consultants of IOCL to register the Appellant's complaint against the 'Corporate Debtor' as an amount of Rs.1.44Crs./- was still unpaid for the Haldia site and Rs.89 Lakhs/- for Bongaigaon site. * Thereafter there was communication on 03/05/2018, 16/08/2018, 09/02/2018, 20/02/2018 and on 23/01/2018 between the Appellant and the IOCL. On 27/10/2018, there was a Meeting held between IOCL and the Appellant and EIL and payment terms for the completion was discussed. EIL addressed a letter dated 30/11/2018 informing the Appellant inter alia, that some shortcomings were noticed in the Inspection Report and requested the Appellant to deploy an experienced engineer for rectification of the same. On December 20, 2018, the Appellant addressed a letter to IOCL regarding the safety of the Godrej Racking System installed at the IOCL factory. It was pointed out that the racking material which was delivered, was lying outside in the open without adequate protection and exposed to d....
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....o IOCL signifies that there were disputes with regard to the work carried by the Appellant. The Appellant had completed the supply of all materials as per the Purchase Orders at both the sites and there were no 'Pre-Existing Disputes' between the parties. 3. Submissions of the Learned Counsel appearing for the Respondent/'Corporate Debtor': * Learned Counsel for the 'Corporate Debtor' submitted that after 2018, the 'Operational Creditor' had never contacted the 'Corporate Debtor' and was directly in touch with IOCL, the end user and a Comfort Letter dated 23/01/2018 was issued by IOCL to the 'Operational Creditor' which signifies that a fresh contract was executed between them. * Learned Counsel drew our attention to the letter dated 28/01/2018 in support of her contention that the entire communication was between IOCL and the Appellant with offers and counter offers having been exchanged. * It was further submitted that after rounds of negotiations, the Appellant had finally accepted the amounts offered by IOCL and that there was absolutely no privity of contract between the 'Corporate Debtor' and the Appellant subsequent to 2018 and that disputes wer....
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.... the total amount proposed as direct payment by IOCL to the Appellant is to be released at the earliest. 12. It is the case of the Respondent/'Corporate Debtor' that even for the Review Meeting the 'Corporate Debtor' was not present and it was held between IOCL and EIL and the Appellant herein. The Minutes too do not record the presence of the 'Corporate Debtor'. From the aforenoted communication, this Tribunal is of the considered view that the payments were to be made, as per the Comfort Letter, by IOCL to the Appellant herein. 13. Now we address ourselves to the main issue as to whether there is any 'Pre-Existing Dispute' existing between the parties prior to the issuance of the Notice mandated under Section 8 of the Code, based on the touchstone of the ratio of the Hon'ble Supreme Court in 'Mobilox Innovations Pvt. Ltd.' Vs. 'Kirusa Software Pvt. Ltd.' (2018) 1 SCC 353, where in the Hon'ble Apex Court has observed as follows:- "40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by....
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....t adequate protection being exposed to direct rain and dust and it is only on account of negligence in storing the material that the paint was peeled off and there was corrosion on the critical components. 18. The dispute between the parties is on account of the shortcomings observed in the quality of the racking materials supplied to IOCL. The letter dated 30/11/2018 addressed to the Appellant specifies that there are discrepancies and the test certificates of all plates/materials is absent. As the letter dated 30/11/2018 is the main document emphasizing the dispute raised, which is neither frivolous nor spurious, it is being reproduced hereunder: (Emphasis Supplied) 19. The Hon'ble Supreme Court in para 45 of 'Mobilox Innovations Pvt. Ltd.' (Supra) has observed as follows:- "45. Going by the aforesaid test of "existence of a dispute", it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does trul....
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....uffering. We hereby undertake to release payment directly to M/s Godrej & Boyce Co. Ltd against material and installation of complete racking system. Indian Oil Corporation Ltd will make payment to the tune of Rs 42,41,947.64/- against completion of erection of racking system. Balance 63,62,921.47/- (as per Contract SOR item) will be released after completion of the job in totality with 1" preference to M/s Godrej & Boyce Co. with due certification by M/s Satec Envir Engineering (I) Pvt Ltd and acceptance of the racking system by PMC (M/s Engineers India Limited). We shall be releasing the payment not later than 30 days from the date of submission of the bill along with related documents at site. Regards, Kly (PC Ray) 2311118 General Manager-Project For and on behalf of Indian Oll Corporation Ltd Haldia Refinery Boy Mumbai Br. odrej & Plant-4 पंजीकृत कारà¥à¤¯à¤¾à¤²à¤¯ जी-9, अनà¥à¤¨à¥€ गानर जंग मारà¥à¤—, बानà¥à¤¦à¥à¤°à¤¾ प....
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....ke a note of the above and help us with full recovery of our dues from M/s Satec. Thanking you and looking forward to your kind support in the above, With best regards, For Godrej & Boyce Mfg. Co. Ltd, Manik Sarkar Regional Head-West, Godrej Storage Solutions Godrej & Boyce Mfg Co Ltd PI 4A, West Zone office & Mumbal branch, LBS Road, Vikhroli (W), Mumbai-400079 (M) +91 9820029854 (O) +91 22 67961261 Document 4 इंजीनियरà¥à¤¸ इंडिया लिमिटेड à¤à¤¾à¤°à¤¤ सरकार का उपकà¥à¤°à¤®) ENGINEERS INDIA LIMITED IA Govt. of India Undertaking) Project Site:- BS-VI Project, IOCL Haldia Refinery, P.O.:- Haldia, Dist.:- Purba Midnapur, West Bengal - 721 606 EIA886/1103D/3813 E-mail:[email protected] CIN No.L74899DL1965GOI004352 M/s Godrej & Boyce Mfg. Co. Ltd. Plot No.30,Block-GN Sector-V,Salt Lake City Kolkata-700091 India Tel.:0336601 3500/2357 0895-98 Date: 30/11/2018 Kind Attn: Sh. Samarjit Chandra, Asst. General ....