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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 ..... 1BR2011PTC016829 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 10/6/2012 between the corporate debtor and the operational creditor, the corporate debtor has agreed to give the operational credit for construction of Boutique Hotel Building at Bodh Gaya, Bihar. Copy of the said agreement is annexed to the application as Annexure B. 4. The operational creditor has stated that the Corporate Debtor made default in the payment of Rs. 2,19,92,896(Rupees Two crores nineteen lacs ninety-two thousand eight hundred ninety-six only) plus interest on service tax. In addition to the said contractual amount, the corporate debtor was also required to pay to the operational creditor all applicable taxes, insurance and other statutory charges. 5. Under the said contract agreement the operational creditor had mobilised their men and materials and commenced the work of construction at Budh Gaya, Bihar. 6. The operational creditor has further stated that as per terms of the said contract, the petitioner had been raising invoices from time to time and initially the respondent corporate debtor was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexure I; copy of construction contract Annexure II and statement of account where deposits are made, or credits generally received by the operational creditor Annexure HI. 12. The petitioner has also stated that Shri Fanindra Kumar Budhouliya, Managing Director has been authorised to act on behalf of the operational creditor. In support of its contention, the petitioner has also filed an affidavit. Petitioner has also presented the authorization letter which shows that the petitioner company by its resolution dated 22/6/2017 had authorized Mr. Fanindra Kumar Budhouliya, Managing Director to sign, verify, appoint advocate, institute the petition or/execution case, give written statement and complaints, sign affidavits, replies, evidence on behalf of the company with the appropriate Court of law having jurisdiction on behalf of the applicant company. 13. The operational creditor has further stated in the affidavit that corporate debtor has failed to bring to the notice of the applicant an existence of a dispute or the pendency of a suit or arbitration proceeding filed before the service of the demand notice. 14. The applicant / operational creditor has delivered demand notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contractor for construction of hotel complex in Bodh Gaya, Bihar. In this regard, respondent floated a tender in which the applicant company also participated, and the contract was awarded to the applicant company vide. Letter dated 31.12.2012 and subsequently, the construction contract was entered into between the parties on 10th June 2012. However, due to the deficient services on the part of the applicant, the work is stretched up to July 2015 when the hotel was functional. The applicant contractor left the work after starting it in July 2012 and abandoned and relinquished the work altogether in September 2014 until which time all payments that have been due were being regularly paid to the applicant as per contractual terms. After the applicant left the work in 2014, the respondent had to engage labour directly on its own and get the hotel construction completed. It is further contended by the Corporate Debtor that application is violative of 9(3) (b) and 9(3) (c) of the Code. The petition has been filed without any proper authorisation by the Board of the applicant company. 19. The corporate debtor has further stated that there is no claim within the meaning of the Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete the construction of the hotel. 22. It is pertinent to mention that the Corporate debtor has filed the document related to contract agreement, which is at page 90 of the reply of the corporate debtor. It is stated in the contract that the final bill shall be submitted by the contractor within one month of the date fixed for virtual completion of the work or of the date for virtual completion certificate whichever is later come up furnished by the Project Manager. 23. The final bill will be certified by the Project Manager within 30 working days from the date of the bill submitted. The contractor shall be paid by the owner within 45 working days of receipt of the project manager certificate. (CI. 1.12) Of the Contract Agreement, which is at Page. 40 of the Corporate Debtor's reply. It is stated in the agreement that the "completion will be deemed to have achieved, at the end of the Defects Liability Period. A Final Completion Certificate has been issued by the PM/owner/architect when all the requirements of the contract have been made and complied with by the contractor and when all the defective items of work and defects have been replaced and/or rectified and made good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port further shows that the item was delivered at Rajendra Nagar S.O. Patna. The same address is stated in the Demand Notice. If there is an error in typing of the destination pin code, then on this basis it cannot be said that item was not delivered. By demand notice and track consignment report, it is clear that demand notice issued against the Corporate Debtor on 25.05.2017 was delivered on the Corporate Debtor on 29th May 2017. 29. It is also important to point out that Corporate Debtor has not issued any notice of dispute within a statutory period of 10 days after receiving the notice under section 8(1) of the Insolvency & Bankruptcy Code. 30. Corporate Debtor has raised dispute by way of reply filed on 16th October, 2017 and Corporate Debtor's main contention in the reply is regarding the non-receipt of the demand notice, whereas on the basis of track consignment report, it is proved that demand notice was served on the corporate debtor, but he failed to issue any notice of dispute under section 8(2) of the Insolvency & Bankruptcy Code. Corporate Debtor has also railed to make the payment of the debt amount and only for creating defence he has raised the dispute that Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me dispute has been raised, but as per statutory requirement, within ten days of the receiving of the demand notice, no notice of dispute has been raised by the corporate debtor. In reply filed by the Corporate Debtor, certain objections have been raised, which are mainly relating to non-receipt of the demand notice. It is further contended that Operational Creditor has left the contract incomplete and he was forced to engage the labour on its own and get the work completed, whereas it is evident by the Completion Certificate issued by the Architect that contract work was completed satisfactorily regarding the contract. Therefore, it appears that the objections raised by the Corporate Debtor are unsupported by evidence. In case of Mobilox Innovations (supra) , the Hon'ble Supreme Court has held that Adjudicating Authority is to see whether there is 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 further held that Adjudicating Authority has to reject spurious defence which is a mere blaster. In this case, defence which has been taken by the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) (c) of the Insolvency & Bankruptcy Code. 37. Corporate Debtor has also objected that alleged amount of dues does not come within the definition of operational debt under section 5(20) or 5(21) of the Code. Section 5(21) of the Insolvency Code provides that- "Operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of repayment of dues arising under any law for the time being in force and payable to the central government, any state government or any local authority." 38. In this case, Operational Creditor has filed the Insolvency case on account of services rendered by the Contractor regarding construction of a hotel and the amount is due relating to the said contract , which comes under the definition of operational debt under the provision of section 5(21) of the Code. 39. Operational Creditor owes such debt which is due on the Corporate Debtor on account of services rendered by the Operational Creditor regarding the construction of a hotel. Thus, it is clear that all the ingredients of section 9 are satisfied, and Operational Creditor has proved that the Corporate Debtor has failed to clear off the dues of mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." Necessary public announcement as per section 15 of the IBC, 2016 may be made. Let the copy of the order be sent to the Applicant / Financial Creditor as well as Corporate Debtor and I.R.P. The Operational Creditor has not proposed any name for appointment as IRP and the company is in Patna. The Panel of Insolvency Professions (IPs) sent by the Insolvency and Bankruptcy Board of India for appointment as IRP or Liquidator contains only the name of the Professionals who belong to Odisha and West Bengal. In my opinion, Insolvency Professional must be appointed from the state of Bihar in this respect. Therefore, letter may be sent to the Insolvency & Bankruptcy Board of India for recommending the name of Interim Resolution Professional who can perform the duties of Insolvency Professionals in the state of Bihar. Copy of the order be immediately sent t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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