Leighton India Contractors Private Limited vs M/s. Shipra Leasing Private Limited

PART - IV

10.1 Claims and Payments

(a)

At the 25th Day of each month during the execution of this Agreement, the AMT will prepare and submit to the Alliance Manager a consolidated monthly payment bill calculated in accordance with Schedules 2 and 5 of this Agreement incorporating invoices and/or accounts, including all supporting documentation as set out in Schedule 7 incorporating:

(i)

the sum of the actual costs incurred (accrual basis wherever applicable as per Schedule 7) by the NOP in performing the work under the Agreement during the month of the payment bill;

(ii)

the sum of the actual costs incurred (accrual basis wherever applicable) by any subcontractors or suppliers appointed by the Owner

(iii)

the NOP's entitlement to Margin (as per Schedule 5) for the month of the payment bill;

(iv)

a monthly forecast of work to be done and/or costs to be accrued

(v)

a signed invoice in the Ad-hoc Amount (i.e. 70%) of the amounts set out in the monthly payment bill(s) and pertaining to the works directly executed by the NOP during the previous month; and

(vi)

any other documentation requested by either the ALT or Alliance Manager.

(b)

The Alliance Manager, will issue the signed invoice for the Ad-hoc Amount to the Owner's Representative for verification and approval for payment by the Owner.

(c)

The Owner must, within 8 (Eight) Business Days of receiving the signed invoice for the Ad-hoc Amount, pay to the NOP the amount set out in its signed invoice by electronic funds transfer to the Bank Account nominated in writing to the Owner.

(d)

The Alliance Manager shall within 2 (Two) Business Days of the submission of the consolidated monthly payment bill in Clause 10.1(a), review the consolidated monthly performa payment bill and if the Alliance Manager determines it is true and correct recommend the monthly payment bill to the Owner's Representative for verification and approval for payment.

(e)

Within 7 (Seven) Business Days of the Alliance Manager's recommendation of the consolidated monthly payment bill (including backup documentation), the Owner's Representative will certify for the NOP a monthly payment certificate certifying the Owner Representative's determination of the sum of the costs incurred by the NOP in performing the work under this Agreement in the month of the payment bill and the NOP's entitlement to Margin. In event of any unresolved query with regards to approval of the month bill raised by OR within a period of 7 business days, then the payment of the such amount will be put on hold on NOP confirmation and to be paid to NOP post resolution.

(f)

In the event that the Owner's Representative fails to certify the monthly payment certificate under clause 10.1 (e) above, then on the 8 (Eight) Business Day after the Alliance Project Manager's recommendation of the consolidated monthly payment bill in Clause 10.1(d), such certification will be deemed approved.

(g)

The failure of the Owner's Representative to prepare a statement within the time required by Clause 10.1 (e) shall not prevent the submission of a payment bill.

(h)

Within two (2) Business Days of the Owner Representative's certification, or deemed certification in Clause 10.1(f), the Alliance Manager will obtain from the NOP a signed valid tax invoice in the amount certified by the Owner's Representative and submit the consolidated monthly payment bill, the signed invoice and the Owner Representative's recommendation to the Owner for payment by the Owner.

(i)

The monthly payment certificate and valid tax invoice must be accompanied by a statement by the Owner's Representative that the amounts shown in the Payment Certificate are in accordance with the terms of this Agreement.

(j)

The Owner must, within 16 (Sixteen) Business Days of receiving all of the documents in Clause 10.1 (a), pay to the NOP the amount set out in its signed invoice by electronic funds transfer to the Bank Account.

(k)

At any time after a Payment Certificate has been paid, the Owner's Representative may undertake an audit of that Payment Certificate to confirm that the amounts shown in the payment bill are in accordance with the terms of this Agreement.

(l)

If the Owner's Representative demonstrates to the ALT that any amount shown in the payment bill is not in accordance with the terms of this Agreement then any adjustment necessary must be made in the following month's payment bill following that demonstration.

(m)

The NOP must arrange to pay to each subcontractor their respective components of any payment received from the Owner within 20 (Twenty) Business Days of receipt of such payment, or as may otherwise be prescribed and due under the terms of the subcontract or as the Participants may otherwise agree.

(n)

Payments by the NOP, if any, to the Owner shall be made no later than 20 (Twenty) Business Days after the Owner provides a Payment Certificate accompanied by a statement from the Owner's Representative that the amounts shown in the Payment Certificate are in accordance with the terms of this Agreement.

To,

Date: 20-02-2020

Plot 10/3-INDI-HUB PROJECT

Leighton India Contractors Pvt. Ltd.,

2/F, Unit no. 205, Pioneer Square,

Golf Course Extension Road, Sector-62,

Gurugram-122001, Haryana, India.

Reference: Interim alliance Agreement dated 20th December 2018 between Shipra Leasing Private Limited (Owner) and Leighton India Contractors Private Limited (NOP) (IAA) for Plot 10/3, Indi-Hub Project.

Subject: Reply to you letter dated 31st January 2020.

Kind Attn: Mr. David Dunworth

Dear David,

As you are aware that the alliance team is in the process of checking the bills and has been able to finalize the payable invoice values only upto RA bill no. 5th, whereby, the invoices from RA bill 6th onwards upto RA bill no. 12th are still in the process of resolution of queries in order to arrive at the final values of the said submitted bills. Even through the deemed certificates have already been released from your end upto RA bill 11th, yet in all practicality a sincere joint effort is underway to arrive at the final payable amounts.

Under the circumstances, we hereby, resolve to expedite the process with your kind cooperation in order to conclude this critical activity which needs your focus and attention in order to remove the gaps caused due to lack of supporting documents, unverified documents, quantity and rate mismatches and other miscellaneous issues etc. which are found to be submitted with the initial submissions but have to be scrutinized and removed jointly to enable us to arrive at the final payable amounts.

Shipra Mall, Plot No. - 9 Vaishnav Khand, Indiraguram, Ghaziabad (U.P.) (0120) 4188300 Fax (0120) 4186311

Flat No-502 & 502 A, 5th Floor, Narain Manzil, 23 Barakhamba Road, New Delhi - 110001 CIN No-U70109DL1989PIC038464 • www.shipraworld.com

We want to further assure you that we are committed to making payments at the earliest and solicit your indispensible support in getting the balance bills finalized.

We are equally keen in working towards the interest of the project and call upon NOP to help us in resolution of the above raised issue and enable us to discharge our duties related to disbursement of payment at the earliest please.

Thanking you,

Authorized Signatory For Shipra Leasing Private Limited

"b)

I am of the view that financial creditors can rely on either of the modes of evidences at hand to showcase a financial debt, that is, either a record of default from the IU OR any other document as specified which showcases the existence of a financial debt. Such other documents may belong to any of the four classes of documents stated in sub-regulation 2(b) of Regulation 8 of the CIRP, 2016 or as the Supreme Court has observed in Swiss Ribbons (P) Ltd. (supra), all the eight classes of documents stated in Part-V to Form-1 appended with the AA Rules, 2016.

c)

Based on sub-paragraph (b) above, it may therefore be inferred that Section 215 of the IBC, 2016 is not mandatory in nature."

“(a)

The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;

(b)

Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;

(c)

Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;

(d)

The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the corporate debtor.”

“Mr. Roshan Lal Jain, IP [email protected] with Registration No. IBBI/IPA-001/IP-P00966/2017-2018/11587 is directed to take charge of the CIRP of the Respondent with immediate effect. The IRP is directed to take the steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016.”