TaxTMI 
TaxTMI 
2024 (5) TMI 1348
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of the Corporate Debtor to accept the claim of the Respondent- M/s Tata Consulting Engineers Limited relating to refund of an amount of Rs.56,80,000/- with interest paid by them to prevent invocation of their Bank Guarantee and an amount of Rs. 16,73,798/- for invoice dated 22.11.2017 raised by them. Aggrieved by this impugned order, the present appeal has been preferred by the Appellant. 2. The salient facts of the case which are relevant to be noticed for consideration of the matter are as outlined below: On 13.01.2010, the Maharashtra State Power Generation Company Ltd ('MSPG' in short) issued a work contract in favour of Sunil Hitech Engineers Ltd ('SHEL' in short) following which SHEL appointed Tata Consulting Engineers Ltd ('TCEL' in short) as sub-contractor to provide engineering services. A Bank Guarantee ('BG' in short) for Rs.56.80 lakhs was submitted by TCEL on dated 01.07.2010, in terms of contract between SHEL - Corporate Debtor and TCEL - Respondent. The validity of the said bank guarantee was extended by the Respondent from time to time upto 30.09.2018. The Corporate Debtor was later admitted into Corporate Insolvency Resolution Process ('CIRP' in short) in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d been paid against the BG without raising any objections. Having made the payment without protest, the Respondent had therefore waived their right to seek refund from the Corporate Debtor and therefore could not have filed their claim for the same amount before the Liquidator. It was vehemently contended that it does not stand to reason how the Adjudicating Authority could have directed the Appellant/Liquidator to allow this claim. 4. It is further contended that the Adjudicating Authority had exceeded its jurisdiction under Section 42 of IBC while passing the impugned order without appreciating the fact that BGs constitute a separate, distinct and independent contract and hence the Adjudicating Authority did not have the jurisdiction to grant relief with respect to such claim. Adjudicating a breach of contract falls outside the scope of the insolvency of the Corporate Debtor and therefore the Adjudicating Authority did not enjoy the power to decide such contractual disputes which could only be determined by way of arbitration as set out in the contract. 5. As regards rejection of the claim filed in respect of invoice No. 171910023 dated 22.11.2017, it was contended that the sam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection of the claim of TCEL is contrived and an after-thought. Hence, the Respondent was constrained to file the IA before the Adjudicating Authority challenging the rejection of their claim by the Liquidator. 8. We have duly considered the arguments advanced by the Learned Counsel for both the parties and perused the records carefully. 9. The main limbs of the Appellant's case are, firstly, that the Respondent had failed to comply with the terms of the contract. The delayed submission of drawings and designs documents by TCEL had affected the overall performance of the Corporate Debtor in the main contract with MSPG leading to invocation of their BG of Rs.83.30 crores by MSPG. Hence the Corporate Debtor had rightly invoked the BG of the Respondent having suffered losses. Following invocation of BG of TCEL, the reversal amount of the BG was paid by TCEL by their own volition and not under protest. That being the case, no right accrues to them at the liquidation stage to claim the reversed amount of Rs.56.80 lakhs from the Liquidator. The second limb of argument is that TCEL had raised their final invoice on 22.11.2017 bearing no. 1719100023 on the Corporate Debtor without the inv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on (3). (3) An operational creditor may submit a claim to the liquidator in such form and in such manner and along with such supporting documents required to prove the claim as may be specified by the Board. (4) A creditor who is partly a financial creditor and partly an operational creditor shall submit claims to the liquidator to the extent of his financial debt in the manner as provided in sub-section (2) and to the extent of his operational debt under sub-section (3). (5) A creditor may withdraw or vary his claim under this section within fourteen days of its submission. 39. Verification of claims.- (1) The liquidator shall verify the claims submitted under section 38 within such time as specified by the Board. (2) The liquidator may require any creditor or the corporate debtor or any other person to produce any other document or evidence which he thinks necessary for the purpose of verifying the whole or any part of the claim. 40. Admission or rejection of claims. - (1) The liquidator may, after verification of claims under section 39, either admit or reject the claim, in whole or in part, as the case may be: Provided that where the liquidator rejects a cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s rejected, a creditor can appeal against this decision to the Adjudicating Authority. After all the required claims have been admitted by the liquidator, he is required to determine the value of the claims for the purpose of distribution of the assets of the Corporate Debtor. This clearly entails the responsibility of more than merely collating claims but verification of claims and determination of their value. 13. Having noticed the scheme of IBC, with respect to role of the Liquidator, we may now see how the Liquidator in the present factual matrix has handled the claims lodged by the Respondent on 24.07.2019. The Liquidator informed the Respondent by email on 03.10.2019 partly rejecting their claims as follows: "Bank Guarantee Claim of INR 56,80,000 We have perused the claim and communication with the Resolution Professional Mr. Ashish Rathi in relation to the invocation of Bank Guarantee of INR 56,80,000. In this regard, we wish to point out the email dated 6th March 2019 sent by Mr. Sachin Mishra (annexed as Page No. 127 to your claim) which clearly states that the amount paid against the bank guarantee is not under protest. Hence, in view of this, the claim of INR 56,8....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that the Respondent had been sending repeated emails on a regular basis to the Corporate Debtor seeking payment against various invoices including Invoice No. 171910023. These emails dated 06.10.2017, 13.10.2017, 02.11.2017, 21.11.2017, 13.12.2017, 16.01.2018, 16.02.2018, 11.04.2018, and 08.01.2019 are available at pages 154 to 157 of Appeal Paper Book ('APB' in short). There is nothing to show that the Corporate Debtor had disputed their liability to pay the last invoice No. 171910023 of 22.11.2017 raised by the Respondent. No communication appears to have been sent by the Corporate Debtor to TCEL regarding balance or pending work. There is also substance in the contention of the Respondent that the emails dated 14.11.2013, 02.06.2014 and 10.11.2014 referred to by the Appellant were at best in the nature of reminder emails from the Corporate Debtor but do not indicate any delays committed by the TCEL or any complaint being lodged against them. No specific grievances with regard to inferior quality of work have either been placed on record by the Corporate Debtor. The Corporate Debtor had themselves communicated to TCEL that the project timeline of the contract between the partie....