AI Drafter 
TaxTMI 
TaxTMI 
2024 (11) TMI 478
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....ional Company Law Tribunal, Mumbai Bench, Court - I), by which Order Section 9 Application filed by the Appellant has been rejected. Aggrieved by the rejection of Section 9 Application, Appellant has filed this Appeal. 2. Brief facts necessary to be noticed for deciding the Appeal are: i. Respondent No. 1, Info Tech Corporation of Goa Limited is a Government of Goa undertaking. ii. On 09.08.2018, M/s. Infotech Corporation of Goa Limited, (hereinafter referred to as Corporation) has invited bids for selection of an implementing agency for creation and implementation of an e- Tendering and e-Auction solution in the State of Goa. iii. The Appellant was issued a Letter of Intent (LoI) dated 27.12.2018 and work Orde....
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....Rs.76,40,425 as interest. xii. Letter dated 08.02.2023 and 28.02.2023, was written by Corporation to DOIT Goa seeking permission of Department of Information Technology, Electronics & Communication (DITEC) to release 75% of the outstanding amount to Appellant and set aside 25% amount to be paid later on after receipt of Report from TPA. xiii. Application under Section 9 was filed by the Appellant on 08.04.2023. The Writ Petition which was filed by the Appellant being Writ Petition No. 1789/2021 was withdrawn by the Appellant which Prayer was accepted by the Hon'ble High Court on 21.08.2023, with liberty to avail the alternate remedy. xiv. In the Section 9 Application Notices were issued to the Corporation but Corp....
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....dmitted. Adjudicating Authority, misinterpreted Clause 4.7(19) of RFP to wrongly hold that debt has not become due and payable. 4. Learned Counsel for the Respondent refuting the submission contend that under Clause 4.7(19) of RFP, payment to the implementing agency was to be made subject to Report submitted by TPA. It was further submitted that the Agreement also stipulated that payment would be released to Appellant subject to certification by the TPA. TPA, having not certified the payment to the Appellant, no default has been committed by the Corporation. It is further submitted that the Letter written to the DOIT, Government of Goa to permit payment of 75% was recommendation made by the Corporation, which has never been accepted. Cor....
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....bound manner." 7. There is no dispute between the Parties that Government of Goa has not appointed a TPA. 8. Learned Counsel for the Respondent has referred to Agreement dated 10.07.2019 between the Parties. Clause 3 of Agreement between the Parties is as follows: "3. In consideration of the payments to be made to Implementing Agency for the services to be provided by him, Implementing Agency shall duly provide, execute and complete site work on or before the completion date mentioned in the tender document and perform all such acts and things in the agreement mentioned or described or which are to be implied there from or may be reasonably necessary for the completion of the services mentioned in the Agreement. The payment s....
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....es where payment was to be released after certification by TPA. The above indicates that there may be lapse of the Government of Goa in not appointing TPA so that TPA can verify the release of the quarterly payments to Appellant, but that cannot be a reason for put the Corporate Debtor in Insolvency by admitting Section 9 Application filed by the Appellant. In the Reply, which has been filed by the Corporation, reference of Writ Petition No. 1789/2021, and one of the Prayers in the Writ Petition has also been referred to in Para 14 of the Reply. Para 14 of the Reply is as follows: "14. The Appellant filed Writ Petition No. 1789 of 2021 before the Hon'ble High Court of Bombay at Goa against the Respondent and the DOIT challenging in....
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....ndeavors. To this end, the parties agree to provide frank, candid and timely disclosure of all relevant fact, information and documents to facilitate discussion between them/their representation or senior officers." 12. On account of the lapse of Government of Goa in appointing TPA and non-payment of the dues of the Corporate Debtor, Appellant was free to avail the Clause 19 of the Agreement, but in the facts of the present case, when in spite of recommendation by Corporation to the DOIT to permit payment of 75% of the amount it is not the case that any sanction was granted by Department to pay the Appellant. We agree with the finding of the Adjudicating Authority that no default can be said to have been committed by the Corporation so a....