BEFORE THE NATIONAL COMPANY LAW TRIBUNAL BENCH,

AT CHENNAI

CP/45/IB/2018
VOLTAS LIMITED
----Applicant/Operational Creditor
Vs
[Link] Limited
----Respondent/Corporate Debtor

PAPER BOOK INDEX

SI No. Date Description of Documents Annexurcs Page No

I 18.02.2023 Counter Affidavit 1-4

2 08.10.2018 No Objection Certificate by A 5-7

Respondent to the Principal
Employer
3 20.02.2014 Letter of Award B 8-13

4 26.03.2019- Communications C 14-18

29.11.2019
5 12.09.2019 Revised 12 a Proposal D 19-46

Certified that the documents filed herein are the true copies of their original.

Dated at Chennai this 18 th day of February 2023.

 BEFORE THE NATIONAL COMPANY LAW TRIBUNAL BENCH,
ATCHENNAI

CP/45/IB/2018
VOLTAS LIMITED
----Applicant/Operational Creditor
Vs
[Link] Limited ----Respondent/Corporate Debtor

COUNTER FILED ON BEHALF OF THE RESPONDENT

The Respondent submits as follows:
[Link] is stated that the Respondent denies all the allegations and averments of the made our
in the application filed by the Applicant/Operational Creditor M/[Link] Limited except
those are specifically herein and put the Applicant/Operational Creditor to strict proof of
their averments.

[Link] Respondent/Corporate Debtor denies that allegations and averments made in Para 6
of the application and submits that the Applicant/Operational Creditor filed the application
to re• ilt't, CP/541/IB/2018 petition is not within time, which is over a delay of 3 years from
the matter was disposed before the NCL T, Chennai on 11.06.2019 and more than 2.5 years
from when the respondent came out from CIRP. Excluding the covid exclusion, this delay
is over a year.

[Link]. Date Remarks

1 11.06.2019 The application of the applicant dismissed
2 30.09.19 12A of the Corporate debtor accepted by NCLAT
pursuant to a settlement plan
3 27.07.22 Filing of revival application by the applicant
4 25.3.20 to Covid Exclusion
28.2.22

3. It is stated that as per the Memorandum of Settlement dated 20.02.2014 between the
Applicant/Operational Creditor it is clear that already dispute had arisen between the above
said parties and due to delay and deficiency/default in the work, the Applicant/Operational
Creditor had terminated the agreements as early as 13 .10.2014. The Applicant/Operational
Creditor's work was far from satisfactory and the ultimate user i.e., RR Hospital,
Government oflndia had also complained regarding the same. Even as per the Settlement
with the Principle Employer, RR Hospital, the Applicant/Operational Creditor had not
complied with his part of the obligations and caused inconvenience to in the said RR
Hospital by not maintaining the equipment. Fo r fli/,[Link] LIM T E
4. It is stated that on perusal of the above mentioned Memorandum of Settlement would
reveal that there has been mutual agreement for the settlement of dues, the terms and
conditions mentioned therein has to be meticulously followed. Without following the
Memorandum of Settlement the Applicant/Operational Creditor has now invoked the
pending Form claims which is legally not tenable. The Clause 9 and 10 of Memorandum
of Settlement clearly states;-
"CLAUSE 9 - This Settlement agreement is a complete settlement of all
claims, disputes, allegations, averment, charges and counter-charges between
the parties provided both parties comply with their part of obligations within
time stipulated.
CLAUSE 10 - In the event of any dispute or differences arising between the
parties out of or in relations the present settlement agreement, or out of or in
relation of the aforementioned work orders dated 10.03.2010, the same shall
. be resolved through reference to a sole arbitration to be appointed mutually
by both the parties. The arbitration venue fees and rules shall be in
accordance with the Delhi International Arbitration Center, New Delhi." It
is enclosed as Annexure A .

6. The Honble Supreme Court of India in Mobilox Innovations private Limited vs.
Kirusa Softwae Private Limites (2018) 1 SCC 353 Observed that IBC is not intended to
be substitute to a recovery forum. It is also laid down that whenever there is existence of
real dispute, the IBC provisions cannot be invoked.

5.. lt is stated that there has been a huge delay in completing the contract and the same is
evident from the fact the commissioning of the HVAC and Electrical works was to be
completed within a period of 12 months from the date of contract i.e.I0.03.2010 as

contemplated in clause 7.1 of the HVAC contract.

6 .. lt is stated that the Applicant/Operational Creditor has not carried out its obligations as
per the work order/letter of award and the MOS also there are many issues pending with
regard to the scope of service. It is pertinent to mention that the RR Hospitals (Military
Engineering Services, Delhi) has invoked the Bank Guarantee of Rs. l ,00,00,000/-(Rupees
One Crore Only) on 21.04.2016, due to the defaults committed by the Applicant. Since
the Sub-contract is on a back to back basis all terms and conditions contained in the
Agreement between Marg Ltd., and MES is applicable to the Applicant/Operational
Creditor. Due to default of Applicant/Operational Creditor, the Respondent/Corporate
Debtor has incurred huge monetary loss by way of invoking B.G. owevo/the
fo r MA G L MIT _ /
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Respondent/Corporate Debtor has given Affidavit to get the amount released from RR
Hospital directly to the Applicant/Operational Creditor which is enclosed as ANNEXURE
B .Due to some queries raised by RR Hospital, which Applicant/Operational Creditor has
to clarify the payment is getting delayed. Even on 25.02.2019 evening the
Applicant/Operational Creditor have submitted about I 000 pages to MES, Delhi in
presence of Respondent/Corporate Debtor' s representatives. The Respondent/Corporate
Debtor has not retained any money belonging to the Applicant/Operational Creditor. There
are mail communications showing the poor quality of works rendered and also they are
raising unwanted things to raise claims and the same is enclosed as ANNEXURE C

[Link] is submitted that there were communications made by the Applicant/operational

creditor inviting the Respondent/corporate debtor to attend the meeting and the
Respondent/CD also communicated that due to some factors and also due to covid travel
restrictions they cannot attend the meetings and the Respondent never agreed and
undertook the liabilities. The applicant/operational creditor not submitted the documents
to the Principal employer R.R. Hospitals though it was requested by the principal employer
many times.

8. The Respondent/corporate debtor submits that as per 12-A settlement of the

Respondent/CD which was approved by the majority of the shareholders, that all the
operational creditors will be settled with I 0% of the principal amount of the Ledgers of the
Respondent/CD . It is enclosed as ANNEXURE D. It is submitted that the
Applicant/Operational creditor has claimed about Rs.5 crores in the company petition
whereas the principal is about Rs .3 crores. As per 12-A proposal, the Respondent is willing
to settle Rs. I crore, whereas to all the remaining operational creditors only l 0% of the
principal amount of their books were settled. The Applicant/Operational Creditor wants to
use the IBC code to arm twist and also to black mail the Respondent into paying the
Applicant/Operational Creditor a sum which is not due and payable to the
Applicant/Operational Creditor.

9. The cause of action and the work orders/purchase orders took place in the year of2010
& 2011. The application filed by the applicant in 2017 and 2018, hence it is time barred
claim, it is liable to be dismissed.

l 0. The applicant VOL TAS was supposed to submit the work completion certificate from
RR hospital which they failed , because of the technical defaults in their work RR also
withheld payment of Marg Ltd. , that's why Marg Ltd, the corporate debtor/respondent
herein assigned the RR receivable to Voltas, and it is understood informally that VOLTAS
For MARG LI MlTE

·- \
Autho r i~ed ' ignato ry
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is getting the AMC payment from RR wherein our payment is not released by RR for which
VOLTAS is only purely responsible.

1I. It is pertinent to note in the application both the addresses of the applicant and the
respondent found in the application are outside Chennai and this Hon'ble Tribunal do not
have jurisdiction and this application has to be dismissed.

12. The Corporate debtor/respondent has given consent for releasing of money from RR
Hospitals to the operational creditor/applicant directly. The applicant has not chosen to
provide documents even after repeated requests made by the principal employer.

In view of the above, it is humbly prayed that this Hon'ble Tribunal may be pleased
to dismiss the Application as devoid of merits and barred by limitation and pass such
further orders that the Hon'ble Tribunal deems fit and proper in the facts and circumstances
of the case.

Dated at Chennai on this I 8th day of February2023.

f or MARG LIM IT D
/
A;thor~ e

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