2021 (5) TMI 395 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT - Though there is no specific date of default mentioned but considering the various work orders and invoices against which the payment is due the date of default is varying from December 2017 to Feb 2019 and the present application is filed on 08.08.2019. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. There exists an operational debt which is due and payable by the corporate debtor. Further with respect to the maintainability of an application, withregards the issue that whether for various claims arising out of separate work orders, single application can be filed by operational creditor - Once the work is complete and final bill is raised, the retention money becomes due and payable. The corporate debtor vide email communication and in its reply to this application had categorically admitted that a sum of ₹ 8,40,000/- is outstanding due and payable to the applicant towards work order ICC-Patna. Though, the corporate debtor has raised dispute prior to issue of the Demand Notice with regards tonon-completion of work on time, defective work and invoices raised, but has itself admitted that retention money is payable - Also, the amount of a debt more than 1 Lakh, which in this case s admitted by the corporate debtor, and the said has become due as per their own statement in their email dated 08.10.2018, leaving no scope for any further adjudication. The application is admitted - moratorium declared.

Summary

Issues Involved:
1. Maintainability of the application under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Existence of operational debt and default.
3. Clubbing of multiple claims under different work orders in a single application.
4. Validity of retention money as operational debt.
5. Pre-existing disputes raised by the corporate debtor.
6. Claim for interest on delayed payments.

Detailed Analysis:

1. Maintainability of the Application:
The corporate debtor contended that the application is not maintainable as it arises out of different work orders, which cannot be claimed under one single application. The tribunal referenced various judgments, including International Road Dynamics South Asia Pvt. Ltd. Vs. Reliance Infrastructure Limited and Meridian Medals Vs. Gactel Turnkey Projects, to affirm that separate claims arising from different work orders can be included in a single application under Section 9 of the IBC.

2. Existence of Operational Debt and Default:
The tribunal observed that there exists an operational debt which is due and payable by the corporate debtor. The applicant provided detailed accounts of unpaid dues from various projects and submitted that the corporate debtor had admitted to some of these dues in email communications. The corporate debtor's own admission of ?8,40,000/- as outstanding towards the ICC-Patna work order was particularly noted.

3. Clubbing of Multiple Claims:
The applicant argued that multiple claims from different work orders could be combined in a single application, citing J.K. Jute Mills Mazdoor Vs. Juggi Lal Kamlapat Jute Mills Co. and Innoventive Industries Ltd. Vs. ICICI Bank and Ors. The tribunal agreed, stating that the claims arising out of multiple agreements can be filed in a single petition under Section 9 of the IBC.

4. Validity of Retention Money as Operational Debt:
The tribunal referenced cases like CTC vs. Hind Inns & Hotels Pvt. Ltd. and Delhi State Industrial Development Corporation Vs. Mohan Construction Company to conclude that retention money, once the work is complete and the final bill is raised, qualifies as a debt and default under the IBC. The corporate debtor's email dated 08.10.2018 admitting the retention money as due further supported this point.

5. Pre-existing Disputes:
The corporate debtor raised several objections, including disputes over workmanship and the absence of interest clauses in the contracts. However, the tribunal found these disputes to be insufficient to deny the existence of an operational debt. The tribunal emphasized that the disputes raised were either not substantiated with evidence or were raised after the demand notice was issued.

6. Claim for Interest on Delayed Payments:
The corporate debtor argued that no interest could be claimed as part of the debt if the contract did not provide for it, referencing Krishna Enterprise Vs. Gammon India Limited. The tribunal noted that while interest claims without contractual basis might not be valid, the principal amount of debt was still due and payable.

Conclusion:
The tribunal admitted the application under Section 9 of the IBC, 2016, and appointed Mr. Satish Kumar Chugh as the Interim Resolution Professional (IRP). The tribunal also directed the operational creditor to deposit ?2 lacs with the IRP to cover initial expenses, subject to adjustment by the Committee of Creditors.

Orders:
1. The application is admitted.
2. Mr. Satish Kumar Chugh is appointed as IRP.
3. A moratorium as per Section 14(1) of the IBC is imposed.
4. The operational creditor is directed to deposit ?2 lacs with the IRP.
5. Copies of the order to be communicated to the applicant, corporate debtor, IRP, IBBI, and ROC.

The judgment was pronounced under Rule 151 of NCLT Rules, 2016, due to the absence of the Hon'ble Member (T) Ms. Sumita Purkayastha.