TaxTMI 
TaxTMI 
2022 (7) TMI 828
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....olkata, West Bengal-700102, (hereinafter referred as the Corporate Debtor). 3. It is submitted in the petition that the Corporate Debtor and the Operational Creditor (collectively be referred to as "Parties") executed a Memorandum of Understanding dated 01.06.2018 for the purpose of collaborating and working towards generating business opportunity for Corporate Debtor, for sale of goods ( Comscope passive component and Cisco Active Component and telephony) (goods) in the project named as "Redevelopment of ITPO Complex into Integrated Exhibition-Cum-Convention Centre (IECC) at Pragati Maidan, New Delhi on Design, Engineering, Procurement and Construction (EPC0 including operation and maintenance" (Project).A copy of the said Memorandum of Understanding dated 01.06.2018 is annexed as Annexure-1. 4. It is submitted that it was mutually agreed that the Operational Creditor shall ensure that the sale of Corporate Debtor's goods in the Project shall be made only through the Corporate Debtor or through their related Company or Comscope or Cisco directly to the end client being M/s Shapoorji Pallonji Qatar W.L.L. (JV) 9th Floor, Videocom Tower, Block-E-I, Jhandewalan Extension, New D....
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.... 10. It is submitted that there was no question of payment of 5% of the sales as the agreed consideration was 10% of the sales and not 5% of the sales. This was in derogation of the terms of the MoU. The reduction of the commission neither finds mention in the terms of the MoU nor in any subsequent correspondence. Hence, the reduction of the commission amount is completely without any basis and in the teeth of Clause 2 and 3 of the MoU. That apart, the monies were not to be paid upon realization but when Sale is effected. This was also in breach of the terms of the MoU. The Corporate Debtor has sought to read terms into the MoU which were never agreed to. 11. It is submitted that pursuant to the email dated 20.02.20219, the Operational Creditor served a Demand Notice dated 07.09.2019 for a sum of Rs.1,26,50,000/- to the Corporate Debtor. The Corporate Debtor replied to such Demand Notice vide letter dated 25.09.2019 whereby the Corporate Debtor disputed the claim amount of Rs.1,26,50,000/- claimed by the Operational Creditor. A copy of Demand Notice u/s 8 of the Insolvency and Bankruptcy Code, 2016 sent by the Operational Creditor to the Corporate Debtor dated 07.09.2019 and cop....
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....perational Creditor is legally due and has to be given by the Corporate Debtor. 17. The Operational Creditor has enclosed with the petition several documents in support of his case, which are as under:- i. Copy of the Memorandum of Understanding dated 01.06.2018; ii. Copy of Email dated 20.02.2019 sent by Corporate Debtor to the Operational Creditor (Annexure A2). iii. Copy of Company Master Data of the Corporate Debtor (Annexure-A3) iv. Copy of payment of Application Free INR 200/- MCA, New Delhi, (Annexure A4); v. First Demand Notice under section 8 of the Code sent by the Operational Creditor to the Corporate Debtor dated 07/09/2019.(Annexure A5). vi. Copy of reply dated 25.09.2019 to the Demand Notice (Annexure-A6). vii. Copy of order dated 11.03.2020 and 08.01.2020 passed by this Adjudicating Authority (Annexure A7 colly.) viii. Copy of claim petition filed before this Adjudicating Authority (Annexure-A8). ix. Demand Notice dated 12.10.2020 sent by Operational Creditor to the Corporate Debtor (Annexure A9). x. Copy of reply dated 04.11.2020 sent by Corporate Debtor is annexed as Annexu....
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.... goods is realized by Agency B or their related company or Comscope or Cisco Directly from the Client. 19. The Operational Creditor has referred to email dated 20th February, 2019,which is reproduced as under:- " Subject: Fw: ITPO Agreement From: Jaldeep Chakrabarti [email protected] on 20 Feb 2019 To: electronics. [email protected]. Cc "anil.t" anil.t@furturnetwings:com 1 attachment (s) -ITPO Agreement _with _MAHALAXMI.pdf(1.73MB) FNS Signature Hello This has reference to the attached agreement regarding the Pragati Maidan redevelopment project As you know, the project was not awarded to us by Shapoorji Pallonji and hence we are not in a position to pass on the 10% of the order value of Commscope and Cisco However after a lot of effort, we were able to get the Commscope part from the awarded party at low margins. As discussed and agreed, we will pass on 5% of the Commscope supply order value to you i.e. 5% of INR 12.65 crore= Rs.63.25 lacs. This will be paid immediately on 100% realization of the payment. It is difficult to predict the timeline for the final paym....
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....mmission was agreed to be payable only upon the payment for the said items (active and passive) as stated, being realised by the company directly from the client, and needless to mention on services being duly provided by the Applicant. 23. It is submitted that due to factors beyond the company's control, the company ultimately was not able to secure the contract from shapoorji Pallonji & co. Ltd. Later, the company was able to get some orders in the project.from a different party namely Niveshan Technogies Private Limited (who is unrelated to the end client shapoorji Pallonji), in respect of PASSIVE items only and the project is still under execution. The order was received at a very low margin from Niveshan Technogies Private Limited in favour of whom the contract was awarded by the end client. The total value of the order was Rs. 12.6 crores and the company got this order on its own initiative and the applicant had no role to play in the company getting this order. copy of the relevant purchase order evidencing the same is annexed as ANNEXURE.A. 24. It is submitted that the company on 20th February, 2O19 informed the applicant about this development i.e. that an order ....
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....e 3 of the MOU, it is only if the company made sales to the "Client that the company would have to pay 10% of sales to the Applicant. It is denied that the MOU was not restricted to sales to Shapoorji. It is denied that sales made to any person other than Shapoorji can come within Clause 3 of the MoU. Such allegations of the Applicant are a deliberate misconstruction of the MOU. Clause 2 is a separate clause which does not import or impose any liability on the company. Anyhow, without rendering service, the Applicant cannot make any claims. It is denied that the email dated 20/02/2019 amounts to acknowledgement or confirmation or admission of any liability, as alleged or at all. It is denied that the company has acted in breach or in derogation of the Mou. It is denied that money was payable before realisation. The email dated 20/02/2019 cannot be relied upon to support the alleged claims of the Applicant and the purported reliance placed thereon is totally misplaced and the Applicant is deliberately misreading the same selectively and out of context. Significantly, in the application, the alleged claim is purported to be based solely on the MoU. However, the Applicant has failed t....