2023 (8) TMI 61

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....t. This Appeal has been filed against order passed by the Adjudicating Authority dated 23.08.2021 by which Section 9 application filed by the Appellant has been dismissed. Appellant filed Section 9 application claiming Operational Debt of Rs.97,03,395/-. The Demand Notice was issued by the Operational Creditor on 09.05.2019 which Demand Notice was replied by the Corporate Debtor by letter dated 27.05.2019 and raised dispute. Subsequent to that Section 9 application was filed by the Appellant in July, 2019 to which a reply was also filed by the Corporate Debtor. The Adjudicating Authority after hearing both the parties, rejected the application. The Adjudicating Authority in the order noticed that there being settlement between the parties o....

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....the reply to Demand Notice: "4. ..... g) .... iv. The existing rates were revised to Rs. 164.50 per sq.m + GST from 10.02.2018. In this regard Lomash agreed to issue credit notes for the revised rates with retrospective effect for the rate difference. [Copy of Minutes dated 10.02.2018 is enclosed as Annexure-B-I] Thus, it was clearly agreed to between the parties that no., amount was due and nothing was payable to Lomash, as on 18.03.2018. As per the said agreement, the existing rates were reduced from 172 to Rs. 164.50 per sq.m with retrospective effect and for which Lomash was to issue credit notes, Lomash has not issued the credit notes till date. Be that as it may, the difference in the rates is Rs. 7.5 per sq.m., and applying....

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....e Bank Guarantee (PBG). Admittedly Lomash has not issued the PBG in terms of the Work Order and therefore, the said demand of Lomash is contrary to the terms of the Work Order and wholly misconceived & not maintainable. k) It is further pertinent to note that, the Lender's Engineer (Engineer appointed by the Project, lenders [Banks/FIs) vide its letter dated 28.04.2019 informed DEPL that during its visit to the site, it has found many defects in the Microsurfacing work carried out by Lomash. The Lender's Engineer has raised serious objection to the sub-standard workmanship in the Micro-surfacing work & has pointed out that longitudinal zig zag crocks were found on the road, road surface at many; places was found to be damaged, exc....

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....rmore, an amount of Rs.16.77 lacs is payable by Lomash in terms of the Work Order, and an amount of Rs.12.58, 782 is payable by Lomash towards reduction of rates. Therefore, it is Lomash who owes an amount of Rs.81,03,879/- to DEPL. [Calculation is annexed as Annexure - E]" 6. With regard to invoices which were issued subsequent to agreement between the parties' details have been given by the Corporate Debtor. It was pleaded that the Operational Creditor was obliged to issue Credit Notes with regard to amount of Rs.12,58,782/-, which was never issued. With regard to settlement which was forwarded by the Corporate Debtor it has been pleaded in the reply that settlement was withdrawn subsequently by Corporate Debtor and the Operational Cre....