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TMI Blog2018 (1) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9 of the Insolvency & Bankruptcy Code, 2016 deserved to be admitted. - CP (IB) No. 412/KB/2017 - - - Dated:- 12-1-2018 - V.P. Singh, Member (J) and Jinan K.R., Member (J) ORDER Per Shri V.P. Singh, Member (J) : The petitioner has filed this application under Sec.9 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as I B Code) 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to Adjudicating Authority Rules) for initiation of corporate insolvency process against corporate debtor Yatri Vihar Hospitality (P) Ltd. 2. Brief facts of the case are the following:- The applicant operational creditor is Techno Fab Contracts (P) Ltd. whose identification No. is U74899DL1995PTC074509 and having its registered office at Flat No. A-1006,10th Floor, Rishabh paradise, Ahinsa Khand n, Indirapuram, Ghaziabad- 201014. The Corporate debtor is Yatri Vihar Hospitality Private Ltd., whose identification No. Is U55101BR2011PTC016829 having its registered office at House No 61, Road No.8, Rajendra Nagar, Patna, Bihar-800016. 3. The petitioner has stated that under a contract dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operational creditor. 9. The operational creditor has further stated that the corporate debtor did not pay the outstanding dues in spite of receiving demand notice dated 23/5/2017. A copy of the demand notice is annexed to the application as Annexure I. The petitioner has stated that total outstanding dues, as stated in the notice was 2,19,92,896 occurred from 18th April 2015.A copy of the statement of account from Bank/Financial Institutions showing the due amount is annexed with the application and marked as Annexure EI. 10. Even after receipt of the demand notice, the corporate debtor failed to make payment of the outstanding dues. Therefore, the petition has been filed for initiation of corporate insolvency process against the corporate debtor. 11. The petitioner has annexed along with the petition copy of the agreement dated 10/6/2012 in support of its claim; emails sent by operational creditor to the corporate debtor till 12th April,2017 ; statement of account Annexure F; demand notice issued under I B Code, 2016 on 23.05.2017 Annexure I; copy of construction contract Annexure II and statement of account where deposits are made, or credits generally received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a notice of a dispute regarding the pending amount from the corporate debtor. 16. The Corporate Debtor has filed objection wherein it is contended that there is an existence of the pre-existing dispute and such disputes have been raised by series of emails on the failure of completion of work.lt is further contended that disputes were raised regarding pending incomplete works and for not having met the standard protocol of the quality and nature of work carried out during construction.It is also contended that no Demand Notice had been issued to the Corporate Debtor as required U/S 8 of I B Code.It is further stated that bills raised by the operational creditor are forged. 17. Corporate Debtor has also stated that the so-called debt fails to fall within the category as postulated in Sec 5(21) of the I B Code. Neither it is in respect of the provision of the services or goods, nor in respect of the repayment of dues arising under any law in force. 18. It is further stated by the Corporate Debtor that the corporate debtor wished to avail the services of the contractor for construction of hotel complex in Bodh Gaya, Bihar. In this regard, respondent floated a tender in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 5(21) of the Code? Point No (i) (ii) 21. The petitioner/operational creditor has stated that ₹ 2,19,92,8 96 outstanding amount fell due on the corporate debtor starting on and from 18.05.2015. The petitioner stated that ₹ 21992896/- + Interest and service tax (Rupees Two Crore Nineteen Lac Ninety Thousand Eight Hundred and Ninety-Six Only) is due on the corporate debtor. The statement of bank accounts from the period of 01-09-2012 to 31-07-2014 has been duly annexed marked and annexed as Annexure-III to prove that debt amount has not been paid by the corporate debtor. The bank certificate issued on 19.12.2017 from the Bank of Baroda maintaining the accounts of the operational creditor as against the account nos. 34930400000031, 34930200000059 and 34930200000097 confirmed that there was no payment of an unpaid operational debt by the corporate debtor. Learned counsel for the corporate debtor has laid emphasis mainly on the fact that the applicant contractor left the work incomplete. Therefore Corporate Debtor had to engage labour directly on its own and complete the construction of the hotel. 22. It is pertinent to mention that the Corporate debtor has fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Architect of the corporate debtor.As per contract terms, Project Manager/Owner/Architect was authorised to issue a completion certificate, and Architect has issued completion certificate of the work. Thus it is clear that defence taken by the corporate debtor is unsupported by evidence. 27. It is pertinent to mention that Demand Notice under section 8 of the LB. Code has been issued by the Operational Creditor through Speed Post, which is at page nos. 7 to 54, which is Annexure-I. Track Consignment Number, which is at page no.54 shows that Speed post item, which was booked on 25th May 2017, was delivered on 29th May 2017 at 16.59. 28. Ld. Counsel for the Corporate Debtor has raised the argument that in the Track Consignment destination postal code is given as 800001 whereas the Pin Code of Corporate Debtor as provided in the Notice is 8000016 as stated in the Demand Notice itself. There is no force in the argument raised by the Corporate Debtor because post office name is rightly written in Track Consignment Report and Demand Notice. It is also to be pointed out that Track Consignment Report further shows that the item was delivered at Rajendra Nagar S.O. Patna. The same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he feet that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 32. In this case, Corporate Debtor has not raised any dispute after receiving the demand notice under section 8(1) of the Insolvency Bankruptcy Code, 2016. When the notice from the Adjudicating Authority was issued, then reply has been filed by the Corporate Debtor, wherein for the first time dispute has been raised, but as per statutory requirement, within ten days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents filed by the Operational Creditor, it is clear that the Corporate Debtor has failed to make the payment of operational dues of ₹ 2,19,92,896/-, in spite of receiving the demand notice under 8(1) of the Insolvency Bankruptcy Code, 2016. 35. The Operational Creditor has also filed the bank certificate in compliance of provision of section 9(3) (c) of the I.B.Code, which shows that the Operational Creditor has not received the payment from the Corporate Debtor in the accounts maintained by the Operational Creditor in Bank of Baroda. Thus, it is clear that the Operational Creditor has done the compliance of section 9(3) (c) of the Insolvency Bankruptcy Code. By certificate issued by the Bank of Baroda, it is evident that Corporate Debtor has failed to clear off outstanding dues ₹ 2,19,92,896/- of the Operational Creditor. 36. Operational Creditor has also filed affidavit wherein it is stated that after issuing the demand notice, he has not received any notice of dispute from the Corporate Debtor. It thus appears that the Operational Creditor has complied with the provision section 9(3) (b) and 9(3) (c) of the Insolvency Bankruptcy Code. 37. Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) ; (d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall affect the date of such order till the completion of the corporate insolvency resolution process. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order. Provided that where at any time during the corporate insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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