B.S.V. Prakash Kumar, Member - (1.) The Operational Creditor (creditor) filed this CP u/s. 9 of I & B Code 2016 stating that this creditor supplied goods and services to the Corporate Debtor company (debtor), in consideration, raised invoices for goods and services supplied to the debtor for its GF Toll Project, DS Toll and NK Toll Project raising invoices and debit notes to an amount of Rs. 8,33,80,343/- towards GF Toll Project and for Rs. 27,31,430/- towards DS Toll Projects. Out of which, the debtor has made total payment of Rs. 5,41,07,993/- till date on a running account basis with respect to GF Toll Project by deducting Rs. 6,23,146/- and Rs. 1,96,876/- towards TDS leaving outstanding of Rs. 2,84,52,328/- pertaining GF Toll Project, as to other two projects, no payment has been made. The Creditor says that the Debtor made last payment on 17.05.2013 ever since the debtor has not made any payment till date towards invoice amounts outstanding as on 17.5.2013, resulting into default in making repayment of balance of Rs. 3,12,83,758/- to the creditor. In this claim, the debtor defaulted in making payment of Rs. 2,84,52,328/- in relation to GF Toll Project, and Rs. 28,31,430/- towards DS & NK Toll Projects. Despite the debtor has not paid the money against the invoices raised on the debtor, the creditor, by virtue of the Purchase Order between the creditor and the debtor, kept on rendering services in terms of the purchase order and raised invoices against the services until 31.5.2015. After much persistence from the creditor, two separate reconciliation statements were jointly prepared on 12.8.2015 by the creditor and the debtor admitting that the balance payable to the creditor in respect to GF Toll Project is Rs. 2,74,92,594/-, the difference in reconciliation statement is only Rs. 9,59,734/-. As to DS Toll & NK Toll Projects, it has been admitted the balance to come to the creditor is mentioned as Rs. 1,00,000/-. To which, the creditor counsel submits that difference between the amount claimed by the creditor and the amount due as per books of the debtor is on account of non-updation of two bills pertaining to DS & NK Toll Projects in debtor Books, which are reflecting as accepted by the debtor site officials.
(2.) In respect to this difference, the debtor counsel categorically stated that payments made to the creditor not being updated in the accounts, the difference of payment already made to the creditor is still not showing in the accounts of the debtor despite some of the payments already made, the counsel says, the creditor has, without computing the payments made by the debtor, filed this CP to initiate Insolvency Resolution Process against the debtor basing on a claim of Rs. 3,12,83,758/- purportedly payable by the debtor to the creditor company.
(3.) Since the debtor company failed to make any payments, despite reconciliation statements have been jointly prepared by the creditor as well as debtor, the Creditor, on 21.01.2017, issued notice u/s. 8 of I & B Code stating that the debtor failed to repay the claim aforementioned, thereby made a demand for payment of Rs. 3,12,83,758/-. The Creditor counsel says that no reply was given within 10 days of receipt of notice u/s. 8 of I & B Code, but subsequent to completion of 10 days reply period, the debtor gave three replies on 14.2.2017, 15.2.2017 and on 16.2.2017 stating that for the creditor failed to perform the contract as agreed between the creditor and the debtor, the debtor is under no obligation to repay the same saying that the debtor indeed has suffered loss by non-performance of the Contract as agreed between them.;