TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1443
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....2015-2016 till 2020-2021. iii) Trial Balance maintained by the Corporate Debtor with regard to its dues towards its creditors, which includes transaction with the Operational Creditors from 2015-2016 till 2020-2021 and other financial statements of the Corporate Debtor including the annual accounts from 2015- 2016 till 2020-2021. 3. It is submitted that unless the orders are passed by this Adjudicating Authority, the applicant i.e. Operational Creditor shall suffer irreparable loss, injury and prejudice and will be lack with no other alternative remedy. 4. In this regard, it would be pertinent to mention the background of this case in the main CP (IB)/648/KB/2019 filed by the Operational Creditor. In this C.P., the Operational Creditor has filed the petition under section 9 seeking CIRP of Hiranmaye Energy Limited, the Corporate Debtor through its authorized representative, Mr. Surjit Singh, claiming a sum of Rs. 12,77,86,304/-as mentioned in Part IV of section 9 application. It is submitted that the Corporate Debtor was earlier known as Indian Power Corporation (Haldia) Ltd. and subsequently, the name of the Corporate Debtor was changed to Hiranmaye Energy Ltd. from 15th Janua....
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....t invoice was raised on 9th March, 2016. The Corporate Debtor received all such invoices without any demur and protest. Invoices were also accompanied with weigh bill challan cum dispatch invoice. The goods were transported by Operational Creditor from its office at Rourkella to Haldia where the office/factory of the Corporate Debtor was situated. 7. It is submitted that the Corporate Debtor received all such goods in respect of the invoices without any demur or protest and never raised any dispute regarding the quality, standard and specifications of the goods supplied and accepted all the goods without any objection. 8. It is submitted that even in respect of such purchase order direct payment was to be made by the Corporate Debtor within 15 days from the date of dispatch of goods to the Operational Creditor. In respect of such purchase order goods were supplied as per strict specification to the Corporate Debtor and the Corporate Debtor accepted such goods without raising any dispute with regard to quality and specifications. In respect of goods supplied, the Operational Creditor raised bill for Rs.13,21,06,940/-. The last bill for Rs.5,19,221 was raised on 09.03.2016. All suc....
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....ke payment to the Operational Creditor for the bills raised. Even in the meeting of 8th July, 2015 it was also agreed that even if there is any dispute in regard to payment related dispute between IPCHL ( the Corporate Debtor herein) after change of name and Scorpio Engineering Private Limited that the Corporate Debtor will directly make payment to the Operational Creditor. As such, from the minutes of the meeting of 28th April, 2015 and 8th July, 2015, the Corporate Debtor had admitted its liability towards the Operational Creditor and has promised to pay the dues of the Operational Creditor in respect of the bills raised for the goods supplied. Copies of the minutes of the meeting held no 28th April, 2015 and 8th July, 2015 are annexed as Annexure -E. 11. It is submitted that even though in another minute of 12th January, 2016, it was recovered that after dispatch of items Scorpio Engineering Private Limited and the Operational Creditor will visit the office of Corporate Debtor and the Corporate Debtor will released the balance amount to Scorpio Engineering Private Limited and Scorpio Engineering Private Limited will release the balance amount of the Operational Creditor through....
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....The Operational Creditor has arranged additional fund to complete such supply under the project and the Corporate Debtor in spite of being such big group was not making payment to the Operational Creditor as a result of which, the Operational Creditor was on the verge of shrinking. As such, through various emails demands were made to release payments due. Copies of such emails dated January 20, 2017, February 16,2017, 28th April, 2017, December 14, 2018 and April 19,2018 are annexed as Annexure-H. 15. It is submitted that on 19th April, 2018, the Corporate Debtor acknowledged its liability towards the Operational Creditor in favour of the dues and admitted the position that the matter is still not resolved and welcomed the Operational Creditor for resolving such dispute. As such, by writing email on April 19, 2018 at 1.10 P.M. the Corporate Debtor acknowledged the jural relationship between the parties. Copy of such email issued by the Corporate Debtor on April 19,2018 issued in the name of Operational Creditor is annexed as Annexure-I. 16. It is submitted that as such, from the said email dated April 19, 2018, it is an admitted position that IPCHL and Hiranmye Engineering Limite....
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....e by them to the Operational Creditor. Moreover, such invoices were acknowledged in the "Form C under Rule 12(1) of the Central Sales Tax (Registration and Turn Over) Rules, 1957" . Copies of such forms are annexed as Annexure K. 21. It is submitted that the Operational Creditor i.e. Trident Fabricators Pvt. Ltd. herein submits that the Corporate Debtor company herein is indebted to the Operational Creditor for a total sum of Rs.12,77,86,304/- as on 10.03.2016. Therefore, Corporate Debtor Company is liable to pay total outstanding amount of Rs. 12,77,86,304./- which is further accruing on a day to day basis until the debt owed to the Operational Creditor is fully discharged. The circumstances and events leading to the filing of the present petition are substantiated in detail in the preceding paragraph hereunder, which make out a clear case for initiation of corporate insolvency resolution process against the Corporate Debtor by this Adjudicating Authority as provided under the Insolvency and Bankruptcy Code, 2016. 22. It is submitted that since the parties used to maintain a running and continuous account, the default as of date is continuing and the Operational Creditor has a r....
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....hase order is dependent upon the fate of the arbitration proceeding initiated between the parties and such the pendency of arbitration proceeding cannot extinguish the liability of the Corporate Debtor to pay the money to the Operational Creditor. In fact, the reply notice of 3rd February, 2019 of the Corporate Debtor is false and frivolous in nature and fraud has been played upon this Adjudicating Authority by contending in paragraph 17 that the corporate debtor has filed proceeding under section 9 of the IBC, 2016 on 30th January, 2019 against the Operational Creditor and as such they are not liable to pay any money to the Operational Creditor. Such stand is false and frivolous and has been made to mislead this Adjudicating Authority and to defeat and delay the legitimate claim of the Operational Creditor. No such proceeding has ever been filed by the Corporate Debtor and the Operational Creditor calls upon the Corporate Debtor to give proof of such statement made n paragraph 17 of the reply notice. As such, fraud has been played as will be evident from the reply letter. As such, no cognizance should be taken as the Corporate Debtor has come up with unclean hands and its reply do....
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....d the Corporate Debtor and there can be no question of any liability existing on the Corporate Debtor to make any payment whatsoever to the Operational Creditor and there cannot be any question of any default on the Corporate Debtor. Thus, this application is liable to be dismissed. It is submitted that the application is not maintainable on the ground of existence of pre existing disputes between the Corporate Debtor and the Scorpion Engineering Pvt. Ltd. that are also a subject matter of arbitration as is explained in detail in paragraph 12 in the reply. It is further submitted that the purported claim made by the Operational Creditor is Ex. facie barred by limitation and the petition is liable to be dismissed on this ground also. 26. While dealing with various allegations averments made in the application filed by the Operational Creditor,the Corporate Debtor replied as under:- a. The Corporate Debtor had awarded a contract to Scorpio Engineering Private Limited ( hereinafter referred to as "Scorpio") for works invoking designing, engineering, manufacturing, supply, erection commissioning in relation to a coal handling plant for a 3x150 MW Thermal Power Project in Haldia, Wes....
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....e Operational Creditor should make a claim against Scorpio for the purported work executed by Operational Creditor on behalf of Scorpio. Instead of proceeding against Scorpio who is in the employer of Operational Creditor, the Operational Creditor issued the purported demand notice and has filed the instant application against the Corporate Debtor in complete abuse of process of law. d. The Corporate Debtor states that moreover, Scorpio did not successfully conclude its obligations under the contract executed between Corporate Debtor and Scorpio within the contract stipulated date of 20th March, 2015 for which Corporate Debtor has already suffered huge loss and damages. Since, Scorpio did not successfully conclude and/or fulfill its work and/or obligations under the contact, the logical conclusion is that the Corporate Debtor did not in any case ultimately receive the benefits it was contractually entitled to receive from Scorpio, hence, no question of any payment by the Corporate Debtor to any sub-contractor of Scorpio arises. This constitutes a pre-existing dispute(s) that is currently a subject matter of arbitration between the Corporate Debtor and Scorpio Engineering Private ....
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....ssue is already in dispute. The Corporate Debtor has raised a counter claim for Rs.1290.91 against Scorpio and the issue/ dispute is being adjudicated through arbitration at the moment. The Operational Creditor is fully aware of the facts yet it is abusing the provisions of the Insolvency and Bankruptcy Code, 2016, by issuing the purported demand notice dated 8th January, 2019 and filing this instant application against the Corporate Debtor. In this connection true copies of the orders of the Sole Arbitrator making it plain and evident that there exists a pre-existing dispute between the Corporate Debtor and Scorpio are annexed as Annexure-A. 27. After going through all the pleadings of the parties made in the petition, it appears that the Operational Creditor has a good case to be tried in Civil Court but not before this Adjudicating Authority because the Corporate Debtor has raised so many issues regarding privitiy of contract with the Operational Creditor which cannot be sorted out or decided by this Adjudicating Authority in this matter of summary procedure. The prayers made in this application no. 770/2021, seeking directions upon the Corporate Debtor to file the various docu....