9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (12) TMI 1700 - Tri - IBCMaintainability of petition - initiation of CIRP - Corporate Debtor - Existence of dispute or not - HELD THAT - It transpires that due to non- execution or incomplete execution of Work Contract on the part of the Petitioner a controversy had cropped up among the Petitioner and the Respondent which is evident from various letters exchanged between the parties as well as the Termination Orders issued by the Port Authorities. Hon'ble Supreme Court pronounced in the case of K. KISHAN VERSUS M/S VIJAY NIRMAN COMPANY PVT. LTD. 2018 (9) TMI 1533 - SUPREME COURT wherein the provisions of the Insolvency Code revolving around the issue of dispute has been discussed in detail and held that so long as a dispute truly exists, the Adjudicating Authority has to reject the Application. The law pronounced by the Hon'ble Supreme Court is squarely applicable on the present set of facts and circumstances of this case. Petition admitted - moratorium declared.
Issues Involved:
1. Maintainability of the petition due to multiple work orders. 2. Existence of a prior dispute. 3. Alleged suppression of facts by the Operational Creditor. 4. Limitation period for filing the petition. Detailed Analysis: 1. Maintainability of the Petition: The Respondent raised a preliminary legal objection arguing that the petition is not maintainable because it pertains to seven different work orders, each needing a separate cause of action and thus separate petitions. The Respondent cited the NCLAT order in the case of International Road Dynamics South Asia (P.) Ltd. v. Reliance Infrastructure Ltd. to support this argument. 2. Existence of a Prior Dispute: The Respondent contended that a dispute existed prior to the filing of the petition, evidenced by a Summary Suit No. 448 of 2017 filed in the Bombay High Court on 16.05.2017, seeking recovery of ?68.88 Crores for losses caused by the Petitioner. The Respondent argued that this suit, being filed before the petition, indicates the existence of a dispute, making the petition non-maintainable. Additionally, the Respondent claimed that the Petitioner’s work was substandard, leading to contract terminations and financial losses, including forfeiture of performance guarantees and blacklisting. 3. Alleged Suppression of Facts: The Respondent alleged that the Petitioner suppressed material facts, specifically payments made directly by Dighi Port to the Petitioner, which were not credited in the claim amount. This, according to the Respondent, rendered the debt amount incorrect and the application defective. 4. Limitation Period: The Respondent argued that most of the invoices were more than three years old, making the petition time-barred under Section 238A of the Insolvency and Bankruptcy Code (IBC). The Petitioner, however, argued that the right to file the petition accrued from the date the IBC came into effect (01.12.2016), and thus the petition filed on 03.08.2017 was within the limitation period. Findings: 1. Maintainability of the Petition: The tribunal did not find it necessary to adjudicate on the issue of separate petitions for separate work orders, as the petition was dismissed on the primary ground of the existence of a dispute. 2. Existence of a Prior Dispute: The tribunal found substantial evidence of a pre-existing dispute, including various termination notices and letters from Port Authorities citing non-execution or faulty execution of work by the Petitioner. The Supreme Court decision in K. Kishan v. Vijay Nirman Co. (P.) Ltd. was cited, which mandates the rejection of an application if a genuine dispute exists. Given the evidence, the tribunal concluded that a dispute did indeed exist. 3. Alleged Suppression of Facts: The tribunal noted the Respondent’s claim that the Petitioner had not accounted for payments made directly by Dighi Port, which contributed to the incorrect debt amount claimed. However, this issue was not the primary basis for the tribunal's decision. 4. Limitation Period: The tribunal did not find it necessary to address the limitation issue, as the petition was dismissed on the ground of the existence of a dispute. Conclusion: The tribunal dismissed the petition for the commencement of insolvency proceedings due to the existence of a genuine dispute between the parties. The findings in this order do not affect any other legal remedies available to the Petitioner under other laws. The petition C.P.(IB)-1282/(MB)/2017 stood dismissed.
|
