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2022 (6) TMI 210 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - privity of contract - forum shopping - HELD THAT - Undisputedly, the contract was given by NBCC to M/s. ERA Infra Engineering Limited and there was no agreement executed between the Applicant and the Respondent herein. No such agreement has been placed on record, whereby ERA Infra Engineering Limited might have been authorised to engage the sub-contractor and for that purpose the Respondent can be held liable and vice-versa. From the record, it is not proved on the record that there was any privity of contract between the applicant and the Respondent herein except to the extent that one letter, which has been written by the Respondent to the M/s. ERA Infra Engineering Limited, that too was only with request to 'due payment' if any of M/s. ERA Infra Engineering Limited. Further, on 08.05.2018 M/s. ERA Infra Engineering Limited had undergone CIR proceedings therefore, any amount lying even if any with the Respondent qua the contract with M/s. ERA Infra Engineering Limited that cannot be made payable to the Applicant herein due to 'Moratorium'. Apart that, there is a serious dispute qua the amount also, as the balance sheets of M/s. ERA Infra Engineering Limited is showing a sum of Rs. 51,79,028 due, whereas the Applicant has been claiming a sum of Rs. 7,10,07,021/-. Moreover, the Applicant has already availed the remedy before the Hon'ble High Court, Delhi by virtue of filing a writ petition 12427/2021, which was filed on 28.10.2021 against the respondent, whereas the demand notice was issued on 26.11.2021. The applicant also filed claim before Ld. R.P. of M/s. ERA Infra Engineering Limited, which was also rejected. Therefore, even otherwise, there is a preexisting dispute - Apart that the applicant is indulged in forum shopping. This Tribunal is also affirm view that there is a serious dispute about the 'due payment', which cannot be decided in a summary manner and requires a detailed enquiry - Application rejected.
Issues:
1. Application under Section 9 of the IBC for initiation of CIRP proceedings against the Respondent. 2. Dispute regarding payment default of Rs. 7,10,07,021 by the Corporate Debtor to the Operational Creditor. 3. Forum shopping allegations and lack of privity of contract between the Applicant and the Respondent. 4. Dispute over the amount claimed by the Operational Creditor and rejection of claim by the Resolution Professional. 5. Existence of a preexisting dispute and filing of multiple claims and petitions by the Operational Creditor. Issue 1: Application under Section 9 of the IBC for initiation of CIRP proceedings against the Respondent The Operational Creditor, Biosafe Lab India Private Limited, filed an application under Section 9 of the IBC against the NBCC India Limited for defaulting on a payment of Rs. 7,10,07,021. The application sought initiation of CIRP proceedings against the Respondent due to non-payment of dues related to a construction project. Issue 2: Dispute regarding payment default of Rs. 7,10,07,021 by the Corporate Debtor to the Operational Creditor The Operational Creditor claimed that the Corporate Debtor, NBCC, had agreed to act as a surety for payments owed by M/s. ERA Infra Engineering Ltd. to the Operational Creditor. Despite this agreement, the full payment was not made, leading to the Operational Creditor seeking redressal through the IBC process. Issue 3: Forum shopping allegations and lack of privity of contract between the Applicant and the Respondent The Respondent argued against the maintainability of the application, citing forum shopping and the absence of a direct contract between the Applicant and the Respondent. The Tribunal noted the lack of evidence establishing a contractual relationship between the parties, emphasizing the absence of privity of contract as a crucial factor in the dispute. Issue 4: Dispute over the amount claimed by the Operational Creditor and rejection of claim by the Resolution Professional The Resolution Professional verified only a portion of the Operational Creditor's claim, leading to a dispute over the total amount owed. Additionally, a writ petition filed by the Operational Creditor for various reliefs, including termination of a contract and payment issues, was pending, further complicating the resolution of the claim amount. Issue 5: Existence of a preexisting dispute and filing of multiple claims and petitions by the Operational Creditor The Tribunal highlighted the existence of a preexisting dispute over the payment amount, as evidenced by the rejection of claims by the Resolution Professional and the filing of multiple petitions and claims by the Operational Creditor. This, coupled with the forum shopping allegations, raised concerns about the summary adjudication of the matter, necessitating a detailed inquiry. In conclusion, the Tribunal rejected the application, citing the serious dispute over the due payment amount, lack of privity of contract, and the need for a detailed investigation. The application was deemed devoid of merit, leading to its dismissal without costs, emphasizing the complexity of the issues involved and the requirement for a thorough examination.
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