TaxTMI 
TaxTMI 
2022 (1) TMI 1418
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....e, 2016 (for short IBC) was rejected holding that the Corporate Debtor (Respondent herein) in the case succeeded in proving existence of disputes. 2. The facts giving rise to this Appeal are as follows: i) The Appellant (Operational Creditor) is a Company incorporated under the Companies Act, 1956. The Appellant (Operational Creditor) was previously known as M/s. Raunaq International Limited and the name of the Operational Creditor Company was changed from M/s. Raunaq International Limited to M/s. Raunaq EPC International Limited. ii) The Appellant is inter-alia engaged in the business of execution of Turnkey Jobs of LP Piping Work. The Appellant is a pioneer in the field of LP Piping work and has completed assignment for various distinguished Companies like M/s. Hindustan Zinc Limited, Adani Power Maharashtra Limited, NTPC Limited etc. iii) The Respondent (Corporate Debtor) is also incorporated under the Companies Act, 1956. The Respondent was previously known as M/s. India Power Corporation (Haldia) Limited and later on the name of the Respondent was changed from M/s. India Power Corporation (Haldia) Limited to M/s. Hiranmaye Energy Limited. ....
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....es towards installation of LP Piping System and Tank etc. at the project site of the Respondent during the period August, 2015 to June, 2018. ix) Further case is that the debt fell due for payment from time to time in the month of February, March and June, 2018 when these invoices were submitted for services rendered by the Appellant to the Respondent. These invoices were also sent in the month of November, 2018 for retention amount. In fact, the Respondent has been deducting amounts from the Running Account Bills on account of "Retention Money" which was payable after the completion of the project. x) The Appellant has successfully completed their part of the Job to the entire satisfaction of the Respondent as early as February, 2018. Since the work has been completed to their entire satisfaction, therefore, there was no cause for concern or issue and hence, there had not been any letter or E-mail or correspondence from the side of the Respondent to the Appellant pointing out any finger or issue or concern. xi) The Appellant has successfully executed their contract and as a result of which, the Respondent issued a Work Completion Certificate dated 28.02.....
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.... Appeal Paper Book). 4. It is further submitted that the Appellant commenced the execution fully mobilizing, Plant, Machinery, Working capital, Man-power and facilities. The supply of pipes and other materials were against Letter of Credit (for short LC) to be opened by the Respondent. The payments for supplies were received in time but, however, the Respondent on many occasions, delayed opening Letter of Credit. However, in service contract, there was no provision of LC and therefore there were regular delays and default on the part of the Respondent in paying Running Account Bills. 5. It is further submitted that the Respondent has relied upon E-mails written during 18.05.2015 to 12.09.2016 in their Reply to Notice under Section 8 of the IBC in order to "inject", "manufacture" create Pre-existing disputes which never existed. 6. It is further submitted that the Appellant raised three Invoices dated 23.02.2018, 20.03.2018 and 25.06.2018 all aggregating to Rs. 31,65,374/- on account of "Construction Services" rendered by the Appellant to the Respondent. The Appellant also raised two Invoices both dated 31.11.2018 on account of "Retention Money" aggregating to Rs. 1,28,77,2....
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....t, and the fact that the learned Counsel for the Respondent is unable to show us any document before the Notice under Section 8 was issued which would indicate that there was any dispute communicated by the Respondent to the Appellant, we find that the Adjudicating Authority erred in dismissing the Section 9 Application observing that "it is deemed that there is dispute prior filing the instant petition". What was relevant was to see whether there was pre-existing dispute when Section 8 Notice was issued." 12. It is further submitted that the Appellant relying on the Judgment passed by this Appellate Tribunal in the case of "Ahluwalia Contracts (India) Ltd. Vs. Raheja Developers Ltd. Company Appeal (AT) (Insolvency) No. 703 of 2018" wherein the Appellate Tribunal held that "From the aforesaid decision, it is clear that the existence of dispute must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice". 13. It is further submitted that the based on these submissions the Ld. Adjudicating Authority has not considered the facts of the case and have not properly appreciated the law and judgment cited by the Appellant during the course of argument, ....
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....l to Appellant on 30.04.2015 (at page 56 of the Reply Affidavit), HEL's email to Appellant on 24.06.2015 (at page 60 of the Reply Affidavit), HEL's email to Appellant on 27.06.2015 (at page 59 of the Reply Affidavit), HEL's email to Appellant on 18.08.2015 (at page 63 of the Reply Affidavit), Minutes of Meeting dated 17.08.2015 (at page 61 of the Reply Affidavit), HEL's email to Appellant on 26.08.2015 (at page 63 of the Reply Affidavit), Project review meeting on 09.11.2016, HEL's email to Appellant on 06.06.2017 (at page 78 of the Reply Affidavit) and also further emails and rightly come to the conclusion that the pre-existing dispute between the parties. 20. It is further submitted that the issuance of a Work Completion Certificate by it did not imply waiver of any right to compensation and/or liquidated damages payable by the Appellant and never implied acquiescence to any delay or any other breach of contract by the Appellant during execution of the same. 21. It is further submitted that admittedly there was an inordinate delay of 3 years and 1 month on part of the Appellant to complete the project which is made evident by the Work Completion Certific....
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....e LP Piping System Packages (First Part) 3 x 150 MW TPP and also contract for "Service of Complete LP Piping System Packages (First Part) for 3 x 150 MW TPP IPC (H) L Haldia Project". There were two Letters of Award (i) one for Supply Portion and another (ii) Service Portion (Annexure - VI at page 112 to 132 of the Appeal Paper Book). * The value of the contract towards "Service Portion" was for a sum of Rs. 4,77,54,300/- and Rs. 20,97,47,000/- towards "Supply Portion" on account of supply of (i) Pipes (ii) Pipe Fittings and (iii) Plates etc. * The Appellant has successfully completed their part of the Job to the entire satisfaction of the Respondent as early as February, 2018. The Respondent issued a Work Completion Certificate dated 28.02.2019 certifying that the work has been completed in May, 2018 (Annexure VIII at page 146 to 153 of the Appeal Paper Book). * The Appellant/Operational Creditor has sent a notice dated 04.06.2019 under Section 8 of the IBC to the Respondent/Corporate Debtor (Annexure- XXII at page 194 to 208 of the Appeal Paper Book), thereafter, Application under Section 9 of the IBC was filed before the Ld. Adjudicating Authority. ....