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TMI Blog2018 (6) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') for initiation of corporate insolvency resolution process against 'Yatri Vihar Hospitality Pvt. Ltd.' (Corporate Debtor). The Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata by impugned order dated 12th January, 2018 admitted the application, declared moratorium and called the names for appointment of Insolvency Resolution Professional from the Insolvency and Bankruptcy Board of India. The appellant, one of the shareholder/Director of the 'Corporate Debtor' has preferred this appeal mainly on two grounds, namely: (i) That no notice under Section 8(1) was served on the 'Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober, 2013, 25th March, 2014, 4th August, 2014 and 12th May, 2015 sent by the 'Corporate Debtor' to the 'Operational Creditor' wherein it was brought to the notice of the 'Operational Creditor' (Contractor) that they failed to complete the work in time and the work was sub-standard. 6. It is relevant to state that the 'Corporate Debtor' allotted the work in favour of the 'Operational Creditor' for construction of hotel block. The email dated 17th October, 2013 shows that the 'Operational Creditor' has failed to complete the work within the time and notice was issued by the 'Corporate Debtor' that if they do not complete the work within seven days, the Corporate Debtor shall depute an alternative agency to complete the work as the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en flooring and carpets. The floor has to be redone. We are getting the flooring removed and redone at your cost. Regards Yatri Vihar Hospitality Pvt. Ltd." 9. The respondents have not disputed about the receipt of the aforesaid emails. Learned counsel appearing on behalf of the respondents submitted that the invoices amounting to Rs. 9,62,29,567/- for construction of the hotel were raised from time to time for earthwork and site development, water proofing, floor finishing etc. Against the said invoices the 'Corporate Debtor' paid a sum of Rs. 7,42,36,671/- but not paid the balance outstanding of Rs. 2,12,92,896/-. 10. The respondents have not disputed the fact as raised by the learned counsel for the appellant that the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 8(1). For the said reason the 'Corporate Debtor' stopped payment to 'Operational Creditor' for not completing the job and for sub-standard work. In fact the 'Corporate Debtor' imposed penalty on the 'Operational Creditor'. 14. In the aforesaid circumstances, we are of the view that the application under Section 9 of the I&B Code was not maintainable. The Adjudicating Authority though noticed the aforesaid existence of dispute but having failed to appreciate, we have no other option but to set aside the impugned order. 15. We accordingly set aside the impugned order dated 12th January, 2018 passed in CP(IB) No. 412/KB/2017. 16. In effect, order(s) passed by Ld. Adjudicating Authority appointing any 'Interim Resolution Profess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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