Rajeswara Rao Vittanala, Member - (1.) The present Company Petition bearing CP (IB) No. /45/09/HDB/2017 is filed by Jaycon Infrastructure Limited, Under Sections 9 r/w 13, 14, 33 of the Insolvency and Bankruptcy Code, 2016 by seeking to initiate Corporate Insolvency Resolution Process (CIRP) against M/s. Gayatri Projects Ltd./ Respondent/Corporate Debtor under the provisions of IBC, 2016.
(2.) Brief facts, leading to filing of present petition, which are relevant to the issue in question, are as follows;- (1) Jaycon Infrastructure Limited (herein referred to as Petitioner / Operational Creditor) was incorporated under the Companies Act, 1956. Its primary business is construction of Buildings, Roads and Bridges etc. (2) Gayatri Projects Limited (herein referred to as Respondent / Corporate Debtor) was incorporated under the provisions of Companies Act, 1956 on 15.09.1989. And its authorised share capital is Rs. 80 crores with paid up capital of Rs. 35.45 crores (approx) divided into 3, 54, 50, 380equity shares of Rs. 10/- each. (3) On 09.10.2007, the Corporate Debtor was awarded a contract by NHAI of design, construction, development, finance, operation and maintenance of KM 0.000 to KM 49.700 On National Highway No. 25/26 in the states of Uttar Pradesh and Madhya Pradesh under North South Corridor (NHDP Phase-ll) -Package NS1/BOT/UP-2 and of design, construction, development, finance, operation and maintenance of KM 49.700 to KM 990.005 on National Highway No.26 in the States of Utter Pradesh and Madhya Pradesh under North South Corridor (NHDP Phase-ll) - Package NS1/B0T/UP-3 and operation creditor made an offer to the corporate debtor for execution and completion of certain works arising out of the said contract. (4) Subsequently, the petitioner and respondent entered into Sub-contract Agreement on 12th October, 2007 for carrying out Bridge Work in construction package NS-l/BOT/UP-2. Accordingly, the Respondent/Gayatri addressed a letter bearing No.GPL/SUB-CON/BRIDGES/JAYCON/006 dated 16.10.2007 to petitioner/Jaycon, in continuation of petitioner's earlier letter dated 9th October, 2007, by awarding sub-contract for construction of Bridges on Jhansi-Lalitpur BOT Project under the above package for a total contract value of Rs.25,57,43,370/-. (5) Being satisfied with the work executed at the aforesaid project, the Corporate Debtor further awarded another work order for construction of Krshipra Bridge at KM 581+532 of NH-3 in the State of Madhya Pradesh vide letter No.GPL/WO/JAYCON/KB/lndore/04/2011 /01, dated19.04.2011. The total contract value against the said award was Rs.4, 62, 63,080/- The respondent, while filling its returns in Form 26-AS for F.Y.2013-14/F.Y.2014-15 have mentioned that it has deducted TDS on the aforementioned running bills of petitioner i.e. R.A. Bill Nos. 24, 25 and 26. (6) The Corporate Debtor is indebted to the operational creditor for a principal sum of Rs.2,28,32,742/-including interest till Jan-2017, out of which the Company duly admits its liability towards the Operational Creditor for an amount of Rs.77,56,137/- (Rupees Seventy Seven Lakhs Fifty Six Thousand One Hundred Thirty Seven Only) and therefore the same is payable without any reason or rhyme along with an interest at the rate of 18% per annum from the due date till its actual realization. The operational creditor kept on chasing the corporate debtor requesting them to clear the outstanding payments but they always sought time for one or other reason and assured the operational creditor that the same would be cleared at the earliest. The parties after much follow-ups of operational creditor, met on 24.03.2014 and post discussion the operational creditorsent an email to corporate debtor on this date whereby it re-affirmed the points of discussion held on the day. (7) The corporate debtor despite of having acceptance to the terms as agreed in the meeting dated 24.03.2014, once again agreed and accepted their liability towards the petitioner Company vide their mail/reply dated 25.03.2014 whereby Shri. J. Brijmohan Reddy, Vice Chairman of the corporate debtor agreed to all points as mentioned in the e-mail dated 24.03.2014 written by the petitioner and requested that the first instalment shall be paid by them in the month of April, 2014 instead of March 2014 and second instalment shall be paid in the month of June 2014 instead of April 2014. However, till date nothing has been paid so far. (8) The Petitioner/Operational Creditor issued aDemand notice dated 20th February, 2017 in prescribed Form 3 under Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the Corporate Debt orby calling upon them to pay the outstanding amount of Rs.2,28,32,742 which includes interest within 10 days from the date of . receipt else communicate pendency of suit or arbitration proceedings in respect of demand. (9) The said notice was duly received and served upon the Corporate Debtor on 27.02.2017, and despite expiry of the period of 10 days as provided under the code; the Corporate debtor failed to either reply or bring to the notice of the Operational Creditor; existence of any dispute or proof of payment of unpaid operational debt as claimed by the applicant/operational creditor. Hence this Company petition is filed by the Petitioner /Operational Creditor.
(3.) The Respondent / Corporate Debtorhave filed a counter dated 25th April, 2017 by inter-alia contenting as follows:- (a) The Petitioner/Operational Creditor is deliberately and intentionally trying to mislead the Tribunal by mixing up the issues. The Respondent entrusted works under 4 agreements (i) Agreement dated 12.10.2007 in relation to UP-2 and UP-3 Bridge works; (ii) Agreement dated 26.02.2008 in relation s. to Bridge Work entrusted to the Petitioner in UP-2 package; (iii) Agreement dated 19.04.2011 in j Indore-Dewas of NH-3 package, whereby the / Respondent entrusted a Bridge work; and (iv) LOI dated 23.01.2011, whereby the Respondent entrusted earth work in Indore-Dewas of NH-3 package. The Petitioner is deliberately and intentionally concealing the material facts of each Agreement just to mislead this Tribunal. (b) The Agreement of UP-2 and UP-3 i.e Agreements dated 12.10.2007 and 26.02.2008 the Petitioner executed Agreement works and the final account was settled. As per the final account the Petitioner was entitled to Rs.50,30,451/-. However, the Petitioner was liable to pay Rs.31, 56,661/- to the Respondent in Indore-Dewas project i.e LOI dated 27.01.2011 (4thAgreement) . The said amount was adjusted against the amount payable under the Agreements dated 12.10.2007 and 26.02.2008. Thus, the amount payable to the Petitioner was Rs.21, 35,491/- as admitted by the Petitioner. Apart from that the Respondent also agreed to pay Rs. 1,75,000/- towards pre-stressing Jack which was allegedly not returned to the Petitioner. Accordingly amount payable to the Petitioner against the 1st, 2nd and 4th Agreements referred above is Rs. 23, 10,497/- The said fact has been accepted by the Petitioner. (c) The aforesaid mentioned due amount of Rs.23,10,497/- has been paid to the Petitioner. Rs.12 lakhs paid through RTGS (Vide cheque No. 528460 dated 02.05.2014 drawn on Canara Bank) and the balance amount of Rs. 11,10,497/- was adjusted against the amount payable by the Petitioner in the 3rd Agreement referred above i.e. Agreement dated 19.04.2011.Hence, it is contended that the Respondent is not liable to pay any amount to the Petitioner. Since the Petitioner has abandoned the works as per Agreement dated 19.04.2011 in May 2014, the question of executing the further works by Petitioner beyond May, 2014 does not arise. The whole case is revolving around RA Bill Nos. 27 and 28 or Agreement dated 19.04.2011, which work was never executed by the Petitioner. (d) It is reiterated that the Respondent entrusted a bridge work to the Petitioner vide Agreement dated 19.04.2011 and it has to construct the bridge at km. 577.550 to km. 610.00 of Indore-Dewas Project and should be completed within a period of 18 months from the date of handing over of the site. The Respondent handed over the hindrance free site on 31.06.2011. Therefore, the schedule completion date was 31.12.2012. As per the agreement dated 19.04.2011, all the works to be completed in all respects by January, 2013. However, the Petitioner has executed only up to 51% work. As per Clause No.29 of Agreement dated 19.04.2011, if the Agreement works are not completed as agreed upon, the Petitioner is liable to pay pre-estimated damages. Accordingly, the Petitioner agreed to compensate the damages of Rs. 50,000/- per day subject to ceiling of 10% of the contract sum. (e) Because of the Petitioner's irresponsible actions/inactions, the Respondent suffered delay of 518 days. As per clause 19 of the said Agreement, the Petitioner is liable to pay pre-assessed damages i.e. Rs.50, 000/- x 518 days, which is more than 10% of the contract value. As per this clause, the Petitioner is liable to pay liquidated damages of Rs. 45 lakhs. (f) The Petitioner is making false claims vide RA Bills No.24, 25, 26, 27 a 28. The Petitioner did not execute any work beyond May, 2014. Moreover, the RA Bills, 27 &28 are not signed by the Respondents. It is denied that the Respondent is liable to pay Rs.2, 28, 32,742/- to the Petitioner. It is seen that out of Rs.2, 28, 32,742/-, interest part itself is Rs. 78, 11,005/- (g) As per the clause 6 of the Agreement dated 19.04.2011, the Petitioner is entitled for 50% retention amount upon issuance of taking over certificate and balance 50% upon completion of the defect liability period in compliance of Clause 30 of Agreement. (h) In pursuant to the Demand notice issued by the Petitioner, the Respondent replied it on 16.03.2017.In fact, the Petitioner earlier issued notice dated nil which was received by the Respondent on 02.07.2016, and in response, the Respondent issued a detailed reply dated 22.07.2016. (i) It is contended that Respondent is solvent Company and is having consolidated net worth of Rs. 76,065.85 lakhs.The Respondent is not liable to pay any amount as demanded. Therefore, this petition is liable to be dismissed.;