V. Nallasenapathy, Member - (1.) Balaji Enterprises, represented by its sole Proprietrix Mrs. Amita Dubey, filed this Company Petition for initiation of Corporate Insolvency Resolution Process under section 9 of the Insolvency and Bankruptcy Code, 2016 (the Code) read with Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016, saying that M/s. Gammon India Ltd., the Corporate Debtor, herein defaulted on 29.11.2016 in making payment of Rs. 65,80,536/- (inclusive of interest charged @ 18% from 20.07.2013 to 20.03.2017) in respect of sub-contract work done at Ennore and also defaulted on 28.10.2015 in making another payment of Rs. 93,72,026/- (inclusive of interest @ 18% from October 2015 till March 2017) in respect of hire charges of scaffolding materials for construction site at New India Hotel & Resort project. Bangalore.
(2.) The claim of the Operational Creditor is of two-fold, one is in respect of payment for this sub-contract work done at Ennore and another is in respect of hire charges for scaffolding materials for construction site at New India Hotel & Resort project. Bangalore.
(3.) In respect of the first claim i.e. sub-contract executed at Ennore: "(a) The Operational Creditor says that vide Work Order No. 8633/297, dated 27.2.2010, work order reference GIL/NTECL/MPOCUUA'VO/8633/09-10/244 and Letter of Intent reference GIL/NTECL/MPOCUU /WO/8633/10-11/255, the work order was entrusted by the Corporate Debtor and the same was executed by the Operational Creditor. The work order (tender for sub-contract) dated 27.02.2010 says the work order value is Rs. 81,01,700/-. The Letter of Intent dated 28.09.2010 issued by the Corporate Debtor says the agreed price for the subject work is Rs. 32,11,200/- (job code 8633). In the event of any dispute arising out of the sub contract the parties have to agree that the matter shall be referred to the Sole Arbitration of an officer of the company nominated by the Managing Director of the Company (other than with the sub-contract) and the award of the Arbitrator so nominated shall be final, conclusive on binding on all parties to the sub-contract. (b) The Operational Creditor has enclosed a mail dated 20.07.2013 issued by one Shankar S. Iyer of Gammon India Ltd. to 8633 NTPC Tamilnadu Energy ACC. account, seeking from one Mr. Jayakumar, the outstanding statement of Balaji Enterprise in respect of Job Code Nos. 8633 and 8813. By an e-mail reply on the same day i.e. 20.07.2013 the said Shankar S. Iyer of Gammon India received the outstanding amount details showing the following as outstanding: (c) By an e-mail dated 30.07.2013 the said Shankar S. Iyer of Gammon India Ltd. sent an e-mail to Mr. Jaykumar stating that further to the meeting with Mr. Dubey at Mumbai and as instructed by Mr. Shailesh Shenoy V.P., Internal Audit, you can release Rs. 30,00,000/- payment to Balaji Enterprise against their outstanding bills. However, the Corporate Debtor has made payment of Rs. 6,00,000/- on 06.11.2013 and another payment of Rs. 7,00,000/- on 26.12.2013. (d) Since no further payment was forthcoming the Operational Creditor, on 29.11.2015, sent a legal notice demanding the outstanding amount of Rs. 36,51,249/- and security deposit of Rs. 3,22,898/- together with interest @ 24% per annum from the actual date of due. Subsequently, the Operational Creditor received payments of Rs. 1,00,000/- on 26.04.2016 through bank, cash payment of Rs. 15,000/- on 22.06.2016 and another payment of Rs. 75,000/- on 29.11.2016 through bank, from the Corporate Debtor. However, the full amount was not settled. (e) The Operational Creditor on 05.01.2017 issued a notice to the Corporate Debtor referring the dispute arbitration u/s. 21 of the Arbitration and Conciliation Act, 1996 stating that out of the work entrusted for the tentative value of Rs. 81,01,700/-, work to the extent of Rs. 53,76,488/- was completed, wherein the Corporate Debtor confirmed by e-mail dated 20.07.2013 a sum of Rs. 49,51,249/- as outstanding, a sum of Rs. 14,81,313/- was paid by the Corporate Debtor, after adjusting the payment with the outstanding due still a sum of Rs. 34,69,936/- is due and payable by the Corporate Debtor and as provided in the arbitration clause of the Work Order the dispute shall be referred to the sole Arbitration of an Officer of the Company nominated by the Managing Director of the Company and called upon the Corporate Debtor for appointment of sole Arbitrator to be mutually agreed by the parties to adjudicate and resolve the dispute, failing which the Operational Creditor will have no other option except to approach the appropriate Court of Law seeking appointment of Arbitrator u/s. 11(6) of the Arbitration and Conciliation Act, 19%. The Corporate Debtor by a letter dated 07.02.2017 requested the Operational Creditor to produce the signed copy of the Work Order, stated that they do not admit any claims or allegations made in the letter, and also stated that claims and counterclaims would be deemed as disputed and shall be subject to adjudication. (f) Subsequently, the Operational Creditor on 16.03.2017, issued a demand notice u/s. 8 of the IB Code demanding a sum of Rs. 65,80,536/- (inclusive of interest @ 18% from the date the amount fell due) enclosing the calculation amount due for the sub-contract work at Ennore and e-mails. The Corporate Debtor by a reply dated 23.03.2017 denied the liability, stated that the amount claimed has already been paid, the amount claimed are actually recoverable from the Operational Creditor, hence the claim amount is not correct and the account has to be necessarily reconciled.";