Feedback Infra Private Limited vs Sanjose Supreme Tollways Development Private Limited

Yogesh Khanna, J

The Petitioner is a leading integrated infrastructure services Company inter-alia offering end-to-end solutions in advisory, transactions, design,

engineering, project management, operations and maintenance across energy, transportation and real estate industries.

Pursuant to the respondent company executing a Concession Agreement with the Jaipur Development Authority for construction of the Jaipur link

road on DBFOT basis, the respondent company had approached the petitioner to provide project management consultancy service, for which a PMC

Agreement was executed between them on 25.09.2012. The Petitioner while agreeing to provide the desired services had duly represented to the

Respondent Company that it has the required professional skills, personnel and technical resources to implement its contractual obligations. The

Respondent Company had decided to enter into the PMC Agreement with the Petitioner with a view to discharge its obligations under the Concession

Agreement. The Petitioner was under a contractual obligation to act in accordance with the scope of work as detailed out in Annexure -1 to the PMC

Agreement. The broad scope of work is summarized as a) Overall project management; b) Survey and setting out of work; c) Design checks and

improvements; d) Contract management; e) Supervision and monitoring; f) Quality control and assurance; g) General assistance; h) Bill verification; &

i) Reporting etc. The Petitioner since inception of the Agreement has acted in strict adherence to its contractual obligations.

In lieu of the services rendered by the Petitioner, the Respondent Company was liable to clear the monthly invoices raised by the Petitioner on the

rates given for the actual personnel deployed. The Invoice Confirmation Report (ICR) with requisite supports had to be submitted with the Respondent

Company within three calendar days at the end of each month in respect of the services already rendered. The Respondent Company also had to

make interest free mobilization advance payment to the Petitioner for an amount equivalent to 5% of the Agreement price i.e. Rs.8,23,74,114/- which

had to be adjusted in 18 equal instalments against the monthly bills of the Petitioner.

As per the Clause 6.7 of the PMC Agreement, the Respondent Company was under an obligation to clear the monthly invoices of the petitioner

within 10 days of the date of invoice after adjustment of any advances and deduction of taxes at source and that any delay in payment would attract

interest at the rate applicable base rate of SBI + 2% for such default period.

The timely payment was the essence of the agreement. As per the clause 7 of the agreement the parties undertook to act in good faith with respect

to each other's rights under the PMC Agreement and also to adopt all reasonable measures to ensure the realization of the objectives of the PMC

Agreement. However the respondent was not making the timely payment against the monthly invoices and various reminders were sent. Though on

the basis of such assurances, the petitioner continued to discharge its obligation under the PMC agreement.

A series of e-mails were written to the respondent by the petitioner repeatedly requesting the respondent to release the payments and in fact on

09.07.2014 the respondent company had put to the petitioner a payment plan for reducing the outstanding and undertook that it shall pay the bill of

each month on or before 10th day of the succeeding month and a sum of Rs. 10 to 15 lacs would be paid over and above the bill amount each month

so as to reduce the oustandings. Even this commitment was not honoured.

On 18.06.2015 the respondent company in a joint meeting in very clear and unequivocal terms agree to make the payments in accordance with a

schedule of payment. It was specifically agreed by the respondent company to pay a sum of Rs.2.82 crores which shall be paid in instalments. The

petitioner on the very next day sent an email to the respondent company giving details of the meeting and their promise to make the payment in a time

bound schedule but yet again nothing came from the respondent company.

By an email dated 14.07.2015 the respondent company forwarded its ledger statements which showed the admitted debt to be paid by the

respondent company. In its ledger the respondent company had admitted as on 25.06.2015 a sum of Rs.1,18,55,065/- is payable to the petitioner. The

petitioner did not agree to the said computation and alleged more amount is due to the petitioner.

As the respondent company was unable to repay the entire admitted debt to the tune of Rs.2,58,09,184/- the petitioner served a legal notice vide an

email dated 12.10.2015 upon the respondent, but it did not respond.

An email dated 09.07.2014 at 3.57 PM of respondent shows the respondent had admitted its liability and it runs as under:-

“Subject: Supreme Infrastructure India Limited• Proposal for reduction in outstanding Dear Sir,

Good afternoon.

With reference to payment of feedback we would like to propose the following plan to reduce the outstanding-

We will pay the bill of each month on or before 10th day of succeeding month.

Further we will ensure the Rs. 10-15 1akh payment above the bill amount each month. So the outstanding position will reduced to 30-45

days within next 6 month. Further we would like to bring to your notice that we have started this practice from July-14 month and we have

paid Rs. 16.90 in the present month and we will pay you fu.rther Rs. 10 lakh on 14th July 2014 and Rs.10 lakh by 25th of July 2014. We

hereby attaching the ledger outstanding us per our books of account.

We request you to kindly accept our proposal and also cooperate with us in this difficult time.

Thanks & Regards,

Sumit Pamecha

Manager (Finance) â€​

The email dated 19.06.2015 of the petitioner referred to a meeting held between the parties on 18.06.2015 wherein the respondent had agreed to

make the payment in the manner as set forth in the email; as follows:-

“Subject: Minutes of Our Meeting with Mr Vikram Sharma, at their office (RESENDING THE EMAIL, WITH KEY IMMEDIATE

MILESTONES/DATESHIGHUGHTED).

Dear Vjkram (VS),

Thanks a lot for finding time to meet us yesterday, even while so many other major issues remain unresolved in the infrastructure space in

general and consequently at your end also. As I said, over the last many years we have very much enjoyed travelling together with and

assisting you in your various initiatives. And we very much want to continue to do so, which we have demonstrated amply during the last two

years-even at the cost of great stress at our end. Since nearly 6Cr is due for payment from Supreme Infra group to Feedback Group by end

of June, you were willing and forthcoming to relieve this extreme stress at our end to the best of your ability. I am just recording our

understanding below, so that we have a common fact-sheet to work on:

JRR: Due amount: 2821acs.

a) 25L DD was handed over to us yesterday. Thanks a lot;

b) Further 50L will be paid to Feedback error before 22nd June 2015;-Responsible:VS

c) Feedback will be informed of the team required at Jaipur (Responsible: Nitin Jain), mobilization of which will begin two week after Sl.

No. b above (Resp: Feedback).

d) Expected billing from this team will be 7-llL/month. However, Feedback will be paid 20L/month (Supreme Infra is willing to pay 5L/week

too) to clear the backlog till bank disbursement restarts; Resp: VS

e) Bank Disbursement is expected to begin by End-September, in which case 70% of the backlog of the project will be cleared by Mid-

October;

f) In the unlikely event of bank-disbursement not happening by September-end, Supreme Infra will still clear 70% of the total amount due as

on End-October, by 15th November 2015: Resp: VS â€​

The aforesaid documents alongwith various other emails and notices do show the petitioner have been requesting the respondent company to make

the payments but the respondent ignored.

The company petition was filed and its notice was duly served upon the respondent but it failed to appear in Court on 07.03.2017, 25.08.2017 and

on 26.09.2017. Neither any reply nor any affidavit in terms of the earlier orders was filed. Hence, considering the facts of the company petition there

is no reason why this company petition be not admitted.

Thus, the company petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed

to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the

newspapers ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of

hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum of `75,000/- with the Official Liquidator within 2 weeks,

subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to

prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept

shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will

also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator

to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company.

In addition, the directors of the respondent-company shall file their statement of affairs within 21 days from today before the Provisional

Liquidator. It is made clear that in the event the said statement of affairs is not so filed within the specified time, the concerned Directors, including the

Managing Director of the respondent-company, shall remain personally present in Court on the next date of hearing, in order to enable this Court to

examine them, if required, on that date.

Respondent company is directed to file an affidavit before the Provisional Liquidator hereby appointed, within 2 weeks from today, furnishing the

following details:-

(i) The names and address of the Managing Director and Directors of the respondent-company.

(ii) Latest address of the registered office and corporate office of the Respondent Company.

(iii) The location of the books of accounts of the respondent-company.

(iv) The details of the movable and immovable assets of the company and the details of the Bank account operated in the name of the respondent

company and statement of account thereof.

The respondent-company, as well its directors, are restrained from alienating, encumbering, or otherwise parting with possession of the assets of

the respondent-company without the leave of this Court. The Official Liquidator shall file a compliance report before the next date of hearing.

A copy of the petition along with annexures be supplied to the Official Liquidator.

List on 19.03.2018.