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13. The Bench notes that in a letter dated 20.12.2018 addressed to IOCL, the Petitioner who are the contractors themselves had mentioned to IOCL, that the racking material due to exposure to rains and dust during installation and because of negligence and improper storage had corroded. Therefore, the Petitioner had strongly recommended that IOC should not use the racking system as the same is not certified for safe use.

14. It is clear to the Bench that and as admitted by Petitioner that there are serious problems with the racking system installed by them and also admits that the system has not yet undergone a safety audit and, therefore, was a non-certified weak racking. The Petitioner itself requested IOCL "not to use the system any further as the same has not been certified for safe use". The Petitioner ends the letter by saying that "Hope u find this in order and would ensure that the safety alert being raised is taken seriously and necessary correctives are undertaken without any further delay." The Bench notes that instead of rectifying the defective work, the Petitioner abandoned the Haldia project and did not carry out any work on the project.

• It is submitted that the total value of the invoices raised by the Appellant upon the 'Corporate Debtor' is Rs.2,45,51,513/- vide 34 invoices pertaining to the supply and installment at both Haldia and Bongaigaon. Despite several requests the outstanding payments were not made.

• On 07/12/17, the 'Corporate Debtor' vide an email admitted that an amount of Rs.1,35,49,360.17/- was outstanding and due and payable Company Appeal (AT) (Insolvency) No. 438 of 2022 for the IOCL Haldia site and an amount of Rs.83,40,030/- was outstanding and due and payable for the Bongaigaon site. • Learned Sr. Counsel drew our attention to the Comfort Letter issued by IOCL on 23/01/2018 undertaking to release the payments to the tune of Rs.42,41,947.64/-; the balance against completion of the erection of the racking system and the rest i.e., Rs.63,62,921.47/- would be released after completion of the job in totality with first preference to the Appellant after due certification by the 'Corporate Debtor' and acceptance of the PMC. It is submitted that in their email dated 07/02/2018, the Appellant pointed out discrepancies in the amounts proposed to be paid by IOCL as mentioned in the Comfort Letter. • Learned Sr. Counsel strenuously contended that there was no 'Pre- Existing Dispute' and that the end user IOCL had given a Comfort Letter only on account of the outstanding dues to be paid by the 'Corporate Debtor'. Subsequently, there was correspondence between the parties i.e., the Appellant and IOCL regarding deficit in the amounts mentioned in the Comfort Letter. On 08/02/2018, IOCL addressed an email stating that they cannot go beyond the Contractual Value mentioned in their Work Order. On 13/02/2018, the Appellant addressed an email to 'Engineering (India) Ltd.' (EIL) who were the Project Management Consultants of IOCL to register the Appellant's complaint against the 'Corporate Debtor' as an amount of Rs.1.44Crs./- was still unpaid for the Haldia site and Rs.89 Lakhs/- for Bongaigaon site. • Thereafter there was communication on 03/05/2018, 16/08/2018, 09/02/2018, 20/02/2018 and on 23/01/2018 between the Appellant and the IOCL. On 27/10/2018, there was a Meeting held between IOCL Company Appeal (AT) (Insolvency) No. 438 of 2022 and the Appellant and EIL and payment terms for the completion was discussed. EIL addressed a letter dated 30/11/2018 informing the Appellant inter alia, that some shortcomings were noticed in the Inspection Report and requested the Appellant to deploy an experienced engineer for rectification of the same. On December 20, 2018, the Appellant addressed a letter to IOCL regarding the safety of the Godrej Racking System installed at the IOCL factory. It was pointed out that the racking material which was delivered, was lying outside in the open without adequate protection and exposed to direct rain and dust. The Appellant also stated that the same should be used after a safety check to avoid any mishaps. On December 27, 2018, the Appellant addressed a letter to IOCL that the request to start work as mentioned in the letter dated 27/10/2018 has not been issued. Thereafter vide an email dated 14/01/2019, the Appellant informed EIL that it would not be possible for the Appellant to execute the work without a formal Purchase Order from IOCL.

7. From the aforenoted letter, it is clear that the 'Corporate Debtor' was undergoing financial crunch on account of which the end user M/s. IOCL has undertaken to make the payment to the tune of Rs.42,41,947.64/- against completion of erection of the racking system and the balance would be released after the completion of the job in totality, with due certification by Company Appeal (AT) (Insolvency) No. 438 of 2022 the 'Corporate Debtor'. It is the case of the 'Corporate Debtor' that this communication signifies that it is the end user IOCL which has undertaken to pay the amounts for and on behalf of the 'Corporate Debtor' and hence no liability can be fastened upon them.

10. The material on record evidences that on 03/05/2018, a Comfort Letter was requested to be issued by the Appellant to IOCL against the Purchase Order for the supply of instalment of Multitier Racks for Heavy Duty Shelving. The correspondence dated 16/08/2018 between the Appellant and IOCL further strengthens the argument of the Respondent that the payment would be realized by IOCL after complete erection of system and the balance after completion of entire racking system.

11. It is pertinent to mention that the communication dated 08/09/2018 and 20/10/2018 addressed by the Appellant to IOCL request that as per the Comfort Letter, the total amount proposed as direct payment by IOCL to the Appellant is to be released at the earliest.