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NCLT admitted insolvency plea as emails between parties proved non-conclusion of final settlement

January 10, 2019[2019] 101 taxmann.com 165 (NCLT - New Delhi)
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I&B Code : Where in response to petition filed by applicant operational creditor under section 9, respondent corporate debtor raised objection that parties had came to a settlement and accordingly certain amount was paid as full and final settlement amount to applicant and there was no amount pending to be paid by it, since email correspondence between parties showed that a final settlement was not reached between parties and there invoices were continuing, instant petition was to be admitted

• The applicant/operational creditor company was engaged in the business of consultancy services provided for large scale construction projects. The respondent/corporate debtor company had engaged the service of the operational creditor for detailed engineering design of various road construction projects vide various agreements. The respondent failed to pay the applicant for design engineering services.

• The applicant filed the application under section 9. The respondent in its reply to the petition had raised a dispute regarding the claim of the applicant. It was stated that there were some differences between the parties regarding the pending amount and they came to a settlement and accordingly certain amount was paid as full and final settlement amount to the applicant. There was no amount pending to be paid by the respondent.

• The applicant in its rejoinder had denied the fact of full and final settlement between the parties.

• It is stated that a full and final settlement was arrived between the parties certain amount are paid. The reply is silent about the four invoices stated to be raised thereafter.

• During oral argument the Corporate Debtor has stated that the invoices raised in 2016 were included in the payment made in December 2015. This argument appears far-fetched. As part of the rejoinder the E-mail correspondence between the parties corresponded between the parties in the year 2016-17 have also been filed. Their email correspondence shows that a final settlement had not been reached between the parties and there invoices were continuing to in December 2015. The Corporate Debtor was given time to counter the document filed by the Operational Creditor along with the rejoinder. However, the Corporate Debtor has not been able to give any evidence to counter their documents.

• In view of the above discussion the present application is complete and there has been default of payment of dues to the applicant on account of services rendered by them to the CD. Therefore, on fulfilment of the requirements of section 9(5)(i)(a) to (d), the present application is admitted.

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