BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

HYDERABAD BENCH
CP (IB) No. 413/9/HDB/2018
IN THE MATTER OF:
JYOTI LIMITED
....APPLICANT/OPERATIONAL CREDITOR
VERSUS
PRASAD AND COMPANY(PROJECT WORKS) LIMITED
.…CORPORATE DEBTOR

INDEX
S.NO PARTICULARS PAGES.
1. WRITTEN SUBMISSION ON BEHALF OF THE
OPERATIONAL CREDITOR IN TERMS OF
ORDER DATED 28.11.2018 PASSED BY THIS
HON’BLE TRIBUNAL.

THROUGH,
DHIR & DHIR ASSOCIATES
ADVOCATES FOR OPERATIONAL CREDITOR
105, 1ST FLOOR, SHANGRI-LA PLAZA
ROAD NO.2, BANJARA HILLS
HYDERABAD-500034
TEL: 040-42208077
PLACE: HYDERABAD
DATED: 13.12.2018
 BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

HYDERABAD BENCH

CP (IB) No. 413/9/HDB/2018

IN THE MATTER OF:

JYOTI LIMITED

....APPLICANT/OPERATIONAL CREDITOR

VERSUS

PRASAD AND COMPANY(PROJECT WORKS) LIMITED

.…CORPORATE DEBTOR

WRITTEN SUBMISSION ON BEHALF OF THE CORPORATE DEBTOR

IN TERMS OF ORDER DATED 28.11.2018 PASSED BY THIS HON’BLE
TRIBUNAL.

That the instant written submission is being filed in terms of order dated dated
1.08.2018 passed by this Hon’ble tribunal. The operational creditor, at the outset
states that the claims of the corporate debtor are wrong and denied on the following
grounds:

1. THERE IS NO DISPUTE IN THE MATTER.

 It is submitted that the corporate debtor has failed to bring on record any
document/ record/ evidence to substantiate that there exists a dispute in the
instant case, the said facts goes on establishing that the dispute, purportedly
attempted to be created by the corporate debtor in the instant case, is a feeble
dispute, which has no legs to stand, the same accordingly deserves no
consideration from this Hon’ble tribunal.
 In order to invoke the dispute clause enshrined under section 8(2)(a), the
corporate debtor is required to bring to the notice of operational creditor about
the existence of dispute within 10 days, which has not been done in the
present case. It is further denied that a common reply to the section 8 was sent
by JV. It is submitted that the said reply has no value in the eyes of law as
IBC does not recognize the joint ventures and that the corporate debtor being
a separate entity was required to specifically reply to the section 8 IBC notice
issued by the Applicant. The reply made by the corporate debtor on
18.06.2018 and 28.06.2018 holds no value in the eyes of law as they were sent
after the expiry of statutory period of 10 days as prescribed in terms of section
8.
 In the above regard reference is drawn to para 8 of the reply statement wherein
corporate debtor has himself admitted that there is no dispute to the fact that
only 75% of payment has been made to the operational creditor and rest 25%
is still due. This sufficiently proves that there is no dispute as to the percentage
of amount which is being claimed by the operational creditor.
 In addition to the above, it is relevant to point out here that no dispute was
ever raised by the corporate debtor prior to the instant application being
preferred by the applicant nor any notice of dispute was sent by the corporate
debtor in its own capacity as a separate entity in response to the section 8
notice of IBC.
2. PARTIAL PAYMENT OF THE MATERIAL SUPPLIED.
 It is submitted that the corporate debtor has himself admitted that the
operational creditor has supplied the goods as per the purchase order dated
26.02.2014 at the site for which the respondent has already made payment of
75% and the same is not disputed. The corporate debtor has himself agreed
that he has not paid the rest 25% of the due amount to the applicant.
 It is further submitted that the Applicant cannot be made to suffer on account
of the suspension of work. The Applicant cannot be made to wait for eternity
on account of nonperformance of obligation by the corporate debtor. The fact
that the Government of Maharashtra has suspended the erection and
commissioning part of the contract does not takes away the right of the
applicant to claim the rest 25% of amount as there is no fault on the part of
the Applicant as they have already made investment so as to fulfill the
obligation under the purchase order.
 It is relevant to mention here that the corporate debtor itself admits its liability
towards the applicant, therefore the corporate debtor is liable to pay the claim
amount to the applicant. In view of corporate debtor’s own admission
regarding its inability to meet its contractual commitment in terms of the
purchase order, the corporate debtor is barred by the principle of ‘Commodum
ex injuria sua nemo’ i.e. ( no party can take undue advantage of his own
wrong). The applicant can’t be made to suffer because of the fault of the
corporate debtor and thus, it’s claim indeed comes within the ambit of section
3(6) of the IBC.

In view of the submissions made hereinabove and the facts and circumstances of
the present case, it is clear that the present petition seeks to clarify the situation
of the operational creditor and it is clear that the corporate debtor is trying to
avoid his responsibility in accord to his own wonng. Therefore, it is most
respectfully prayed that before the Hon’ble tribunal to rule in favour of the
applicant.

THROUGH:

DHIR & DHIR ASSOCIATES

ADVOCATES FOR OPERATIONAL CREDITOR
 105, 1ST FLOOR, SHANGRI-LA PLAZA
ROAD NO.2, BANJARA HILLS
HYDERABAD-500034
TEL: 040-42208077
PLACE: HYDERABAD.
DATED: 13.12.2018