2022 (3) TMI 1170 - Tri - Insolvency and Bankruptcy

Maintainability of petition - 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 - As per the Petitioner, the subject work order was dated 25.09.2013 and the time limit for completion of work was extended until 28.02.2015, vide the Amendment Agreement dated 26.12.2014. Since, the instant CP filed on 09.01.2018 i.e. within three years from the date of expiry of the extended time line which was 28.02.2015, the CP is well within the period of limitation. Even otherwise the Respondent/Corporate Debtor in Annexure A3 Audit Report pertaining to the Petitioner enclosed to its statement of objections filed in the CP, admitted that the extended date of completion of the subject work order was 28.02.2015. Hence, it cannot be said that the CP is barred by the period of limitation. It is a settled principle of law that the relevant date for consideration of existence of any dispute between the parties is the date of issuance of Demand Notice under Section 8 of the IBC. In the instant case, the Petitioner issued the Demand Notice on 27.11.2017. It is the specific case of the Respondent that vide letters dated 12.09.2014 and 03.03.2016 (Annexure A2 of the Statement of Objections) they have raised various disputes about the defects and delayed work of the Petitioner and hence the C.P. is liable to be dismissed on the ground of pre-existing dispute - On the other hand, the Petitioner also admitted the receipt of the letter dated 03.03.2016 from Respondent where under various defects and deficiencies were raised by the Respondent and also where it was stated that if the Petitioner fail to complete the said works they will deploy other agencies and get the work done. The Petitioner further admitted that he has replied to the said letter dated 03.03.2016 expressing its willingness to complete the work demanded, however subject to payment of acknowledged debts. There were pre-existing disputes between the parties before the issuance of the Demand Notice by the Petitioner - petition dismissed.

Summary

Issues Involved:
1. Whether the CP is filed within the period of limitation.
2. Whether there were any pre-existing disputes between the parties in respect of the claimed operational debt.

Issue-wise Detailed Analysis:

1. Whether the CP is filed within the period of limitation:
The Petitioner argued that the subject work order dated 25.09.2013 had its completion timeline extended until 28.02.2015, as per the Amendment Agreement dated 26.12.2014. The CP was filed on 09.01.2018, which is within three years from the extended completion date of 28.02.2015, thus falling within the period of limitation. Additionally, the Respondent’s Audit Report (Annexure A3) confirmed the extended completion date as 28.02.2015. Therefore, the Tribunal concluded that the CP was not barred by the period of limitation.

2. Whether there were any pre-existing disputes between the parties in respect of the claimed operational debt:
The Tribunal emphasized that the relevant date for considering the existence of any dispute is the date of issuance of the Demand Notice under Section 8 of the IBC. The Petitioner issued the Demand Notice on 27.11.2017. The Respondent contended that they had raised various disputes about defects and delayed work through letters dated 12.09.2014 and 03.03.2016. The Petitioner acknowledged the receipt of the letter dated 03.03.2016, which detailed defects and deficiencies and stated that if the Petitioner failed to complete the work, other agencies would be deployed. The Petitioner responded, expressing willingness to complete the work subject to payment of acknowledged debts. However, it was unclear whether the Petitioner rectified the alleged defects or completed the work. The Tribunal concluded that there were pre-existing disputes between the parties before the issuance of the Demand Notice.

Conclusion:
In light of the finding that pre-existing disputes existed between the parties, the Tribunal dismissed the CP (IB) No. 17/BB/2018. However, the order does not preclude the Petitioner from seeking any other legal remedy in accordance with the law for redressal of its grievances against the Respondent.