Raymond Construction Co. India Pvt. Ltd vs Larsen And Toubro Ltd

Raymond Construction Co. India Pvt. Ltd. .... Appellant

Vs

Larsen and Toubro Ltd. .... Respondent

Present: For Appellant: Appeared but attendance not marked.

For Respondent: Ms. Babita Kushwaha, Advocate.

ORDER

05.07.2019 The Appellant Raymond Construction Co. India Pvt. Ltd.

filed an application under Section 9 of the Insolvency and Bankruptcy Code,

2016 (I&B Code) before the Adjudicating Authority (National Company Law

Tribunal) Mumbai Bench, which has been dismissed by impugned order

dated 8th April, 2019 on the ground of pre-existence of dispute.

2. The Adjudicating Authority noticed the stand taken by Respondent

Larsen & Toubro Limited that M/s. Raymond had earlier raised claims

towards the running bills pertaining to Ganganagar site and the payments

claimed thereunder were categorically denied by L&T to be payable vide

emails dated 11th May, 2018 and 14th May, 2018 since there were pending

works to be completed by Raymond and called upon them to perform the

same by visiting the site along with the reconciliation statement. However,

M/s. Raymond remained sullen to such repeated requests from L&T for

reasons best known to them.

Company Appeal (AT) (Insolvency) No. 668 of 2019 Page 1 of 3

3. Learned Counsel appearing on behalf of the Appellant referred to

emails dated 10th May, 2018, 11th May, 2018 and 12th May, 2018 to suggest

that the work was never abandoned by the Appellant. The Appellant always

requested to provide site for execution of the rest of the work, but in spite of

such request, site for execution of the rest of the work was not provided, due

to which Appellant's labour were sitting idle. It is further submitted that the

materials were also returned to them as far back as on 6th February, 2018.

4. We have gone through the records and perused the aforesaid three

emails. The email dated 10th May, 2018 was written on behalf of the

Appellant wherein it was intimated to L&T against bills prepared, only part

of the amount has been paid through RTGS and remaining amount of

Rs.37,00,000/- has not been paid. It was also intimated that retention

money amounting to Rs.39,34,822/- has also become due to the Appellant

as the work has been abandoned on the instructions of L&T.

5. Email dated 11th May, 2018 is the reply by L&T, wherein they intimated

that the L&T neither ordered for abandon of the work nor such instructions

was conveyed to the Appellant or Appellant's representative. Rather, testing

works of laid lines and manholes were still balance for which the payments

of the Appellant were on hold. Moreover, material issued from stores is still

unaccounted, was informed.

6. The Appellant thereafter by its email dated 12th of May, 2018 intimated

the L&T that they have returned the material on 6th February, 2018 to their

stores and the work had been abandoned on the request of L&T, as the L&T

Company Appeal (AT) (Insolvency) No. 668 of 2019 Page 2 of 3 was not able to provide the Appellant the site for execution of the rest of the

work.

7. From the aforesaid emails, one thing is clear that the work was

somehow or the other stopped and rest of the work could not proceed.

Allegation is made by the Appellant that work was abandoned because of the

instructions by the L&T. On the other hand, L&T intimated the Appellant

that they have abandoned the work and there were no instructions given to

Appellant or its representative to abandon the work and thereby work

remained incomplete. This issue amount to a civil dispute, which cannot be

decided by the Adjudicating Authority or this Appellate Tribunal. Therefore,

the application under Section 9 is not maintainable. We find no merit in this

Appeal, which is accordingly dismissed. However, the impugned order will

not come in the way of the Appellant to move before an appropriate Forum

for appropriate relief.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

Ash/GC

Company Appeal (AT) (Insolvency) No. 668 of 2019 Page 3 of 3