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TMI Blog2018 (4) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of IBC,2016 contemplate the insolvency of the Corporate Debtor and the consequences arising thereunder are for the benefit of the entire body of creditors and that no creditor is going to be benefitted and on the other hand the claim of advance and non-payment of the same cannot be considered as an ‘Operational Debt’, this Tribunal is not satisfied with the claim as put forth by the Operational Creditor as beyond the pale of plausible dispute. - C.P. No. IB NO./394/(ND)/2017 - - - Dated:- 2-2-2018 - MR. R. VARDHARAJAN, J. For The Petitioners : Dr. Amit George, Mr. Swaroop George Advocates For The Respondents : Mr. Sumant Batra, Mr. Honey Satpat, Mr. Srishti Kapoor, Advocates ORDER 1. The above Petition has been filed by M/s KLA Construction Technologies Pvt. Ltd. in the capacity of Operational Creditor against M/s CKG Reality Pvt. Ltd. claiming to be its Corporate Debtor under the provisions of Section 9 of Insolvency and Bankruptcy Code, 2016 ( IBC,2016). The Transaction giving rise to the claim and the particulars of Operational Debt has been stated in Part. IV of the application filed in the relevant form, as provided under Insolvency and Bankrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor was obliged to pay the mobilization advance, but however subject to completion of mobilization process by the Operational Creditor. Since the same was not completed despite several reminders and requests for mobilization from the Corporate Debtor, the advance was not paid. It is also pointed out in the reply that the Operational Creditor had infact started de-mobilization by initiating the de-mobilization procedure and hence the claim in relation to mobilization advance has been made only to invoke undue pressure by the Respondents/Corporate Debtor to exhort monies from it. It is also further contended in the reply that the non-commencement of works at the project site by the Operational Creditor has resulted in huge losses which has provided the scope to Corporate Debtor to file claim for the recovery of cost and damages from the Operational Creditor in terms of the contract entered into between the parties. 3. In the additional affidavit filed on behalf of Respondent/Corporate Debtor wherein it is contended by the Corporate Debtor that a sum of ₹ 11.00 lakhs as token advance being the claim herein was required to be paid only to start the work after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be classified as an Operational Debt and the Petitioner cannot be classified as an Operational Creditor in terms of the provisions of IBC,2016 which goes to the root of the claim and relying on the decision of Hon ble Supreme Court in Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Ltd. in Civil Appeal No. 9405 of 2017, Learned Counsel for the Petitioner has also chosen to rely on the said judgement of the Hon ble Supreme Court and draws the attention of this Tribunal to paragraph Nos. 24 and 40 and points out that there is no pre-existing dispute raised by the Corporate Debtor but on the other hand the Corporate Debtor is raising issues only subsequent to the filing of application as no notice of dispute has been given by the Corporate Debtor. It is submitted by Ld. Counsel for the Corporate Debtor that even though the statement of expenditure for work done has been filed vide Diary No. 2262 dated 11.10.2017, and as detailed under Annexure A-1 wherein a bill in a sum of ₹ 2880837.30 has been raised and again vide Annexure A-2 claiming compensation in a sum of ₹ 16308661.35 in relation to loss of opportunity and the resultant damages claimed to have aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by virtue of the said addendum dated 13.7.2017 a schedule of work by 16.7.2017, The Operational Creditor was required to mobilize by 26.07.2017 and start laying cement concrete (PCC). It is the contention of the Corporate Debtor that the site itself was not ready for carrying out PCC work and that there was water logging which was not fully tackled and further the mobilization having not taken place to commence the work envisaged under the agreement, the advance was not paid. 9. In the exercise of summary jurisdiction it is required to be seen whether this Tribunal can go into the question that whether the site was properly set up and as to whether the full mobilization of equipments as envisaged for carrying out the work has been done by the Operational Creditor as this will require, being in the nature of works contract, an independent commissioner to be appointed to ascertain the veracity of claim of the respective parties in relation to the status of the project site. It is seen from the record that there is no independent report or certificate having been enclosed by the Operational Creditor to sustain the plea of full mobilization of equipments or that the construction s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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