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TMI Blog2018 (4) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 8.11.2016 by the Hon' High court for the states of AP and of Telangana. Therefore, the present Company petition also do not fulfill the conditions prescribed under section 9(5)(i) to admit the case, and, thus, it is liable to be rejected under Section 9(5) (ii) of IBC, 2016. And the petitioner was given ample opportunity duly following principles of natural justice as detailed . Petition dismissed. - C.P. (I.B) NO. 316/09/HDB/2017 - - - Dated:- 9-4-2018 - Shri Rajeswara Rao Vittanala, J. For the Operational Creditor: Ms. AsmaRaza, along with Mr. L. Aravind ReddyAdvocates For the Corporate Debtor: Shri Dammalapati Srinivas, Learned Advocate General for the State of AP Senior Advocate along with Shri B. Harinath Rao, Advocate ORDER Rajeswara Rao Vittanala, 1. The present Company Petition bearing CP (1B) No. 316/9/HDB/2017, is filed by Equipment Conductors of Andhra Pradesh Ltd (Petitioner / Operational Creditor) U/ s. 9 of Insolvency and Bankruptcy Code, 2016 R/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by inter-alia seeking to initiate Corporate Insolvency Resolution Process (CIRP), in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Hon'ble High Court of Punjab and Haryana , Chandigarh . After hearing the parties, the Hon ble High court of P H, has disposed off the appeals vide order dated 29th January, 2016 by interalia setting aside the order of ADJ remanding back the matter to the Arbitrator as referred to above with an observations that Objecting Court should determine 75 % of amount in question etc.. Aggrieved by said order, the Corporate Debtor has filed a clarification Petition C.M. No. 5298-99-CH-2016 in FAO No. 10525 of 2014 , under Section 151 of the Cr. PC for clarification in respect of adjudication of objections by objecting court U/s 34 of A C Act, 1996 and in respect of setting aside of order to remand the matter back to the Arbitrator vide judgment dated 29.01.2016 in FAO No. 10525 of 2014 passed by the Hon'ble High Court of Haryana and Chandigarh. After hearing the case, the Hon 'ble High Court vide its order dated 17th March, 2016 has dismissed the case with a cost of ₹ 75.0000/- by declining permission for withdrawal of Application. (f) The Operational creditor/ Decree holder has filed Execution Petition Sr.g No. 10950/2016, under Order XXI Rule Il CPC R/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigations before various forms, has got issued a demand notice dated 14.10.2017 under the provisions of IBC, 2016 by claiming an amount of ₹ 45,69,31,233/- And aggrieved by non-payment of interest on delayed payment, has filed the present Company petition, by seeking to initiate CIRP against the Corporate Debtor. 3. The Respondent, has opposed the instant Company petition filing a Counter dated 05.01.2018 , which are further reiterated vide written arguments dated 23.01.2018, by inter-alia contending as follows:- (1) The filing of the present Petition is nothing but abuse of process of law more particularly when the Arbitration Tribunal i.e. Haryana Micro Small Enterprise Facilitation Council ( HMSEFC) has declared the claim Nos. I to 57 are hopelessly barred by Law of Limitation in Case No. 3 Award No. HMSEFC/2010/06, Dated: 21-06-2010. This Petition is filed by the Operational Creditor with an ulterior motive for by wrongful gain and by illegal means. It has cited the judgment of the Hon'ble Supreme Court in Mobilox innovations Pvt Ltd Vs Kirusa Software Pvt Ltd and thus contended that where there is no admitted liability or when there are no orders passed by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Civil Court at Hyderabad under Order 21, Rule 17 C.P.C. to determine the amount in Case No.3 Dated: 21-06-2010 in respect of Claim/ Invoices Nos. I to 57, that was dismissed by Orders Dated: 20-01-2017. (4) It has stated that the Corporate Debtor has issued Purchase Order No. CEP/EP3/A1/CEBT-1851/95/PM- 8817, Dated: 31-10-1995, in favor of the Operation al Creditor for supply of conductors and the Operational Creditor has supplied the said material on various dates and raised the bills (in respect of invoices bearing Nos. I to 57 as appended to the Award Dated: 21-06- 2010 passed by the HMSEFC, in Case NO. 3) on various dates . And the Corporate Debtor has paid the entire invoices on various dates but with some delay, and the Operational Creditor has acknowledged the said amounts without any objections. However, the Corporate Debtor has filed the said above said arbitration proceedings before the Industrial Facilitation Council for payment of interest for the delayed period, in respect of invoices Nos. 1 to 82 under the provisions of Interest on Delayed Payments Act. The said Council, after hearing both the parties, has passed the Award Dated: 21-06-2010 whereby it has dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 to 82 including claims I to 57 already held to have barred by Law of Limitation. The O.C has filed the said E.P inspite of the fact that the dismissal of the claims/ invoices Nos. 1 to 57 by the Arbitration Council as hopelessly barred by the Limitation Act 1963, which order was later confirrned by Common Orders Dated: 29-01-2016 passed by the Honble Punjab and Haryana High Court at Chandigarh in FAO No. 10507 of 2014 and batch cases, wherein the Order Dated: 28-08-2014 passed by the Additional District Judge at Chandigarh in Arbitration Case No. 361 of 2010 in remanding back the matter to the Council for fresh disposal, was set aside. The Corporate Debtor having come to know about the filing of the said E.P. Sr. No. 10950 of 2016 appeared in the said case and filed its Objections Dated: 10-08-2016, contending that the said E.P. S.R. No. 10950 of 2016 filed by the Decree Holder is not maintainable and the same is liable to be dismissed in limini being wholly misconceived. But the Hon ble Chief Judge, City Civil Court, Hyderabad without adhering to the objections filed by the Corporate Debtor, has registered the same as E.P.No.50/2016. Aggrieved by the Orders Dated: 17-08-2016 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Micro and Small Enterprises Facilitation Council, Chandigarh, in Award No. HMSEFC/2010/06, in Case No. 3, in respect of claim/ invoice Nos. 1 to 57 which were held as hopelessly barred by the Limitation Act 1963 has also attained finality. In spite of the above said clear orders passed by various courts/ forums and attaining finality of the Award Dated: 21-06-2010 passed by the council in respect of the claim/invoices Nos. 1 to 57, the Operational Creditor has filed the E.P.No. 217 of 2017 which is transferred to the Hon'ble Commercial Court by orders of the Hon'ble Chief Judge which was registered as C.E.P. No. 31 of 2017, only to get the amount determined under order 21, rule 17 C.P.C.Thus the O.C. has approached the City Civil Court with unclean hands and suppressed the above said material facts and trying to mislead the Hon'ble Court and also trying to execute the Award where there is no decree for payment of any money is passed (in respect of the claims/ invoice Nos. I to 57 which were held as hopelessly barred by the Council and the same were attained finality), and the said action of the Operational Creditor virtually arnounts to misrepresentation knowing full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate, nothing has been stated about the date of the alleged resolution. Therefore, it is contended that the Operational Creditor has not passed any resolution much less the alleged board resolution Dated: 27-09- 2017 and the alleged resolution is brought up only after an objection is raised by the scrutiny officer of this Hon'ble Tribunal. 11. The Registry also raised an objection as to the date of default of the amount claimed and the Operational Creditor without answering the said query, in its submissions has stated that the award has attained finality by the disposal of Sec. 37 Application vide Judgment Dated: 29-01-2016 in FAO No. 10507 of 2014, which is absolutely incorrect. As stated supr, the order passed in CRP the Hon ble High Court of Andhra Pradesh and Telangana at Hyderabad has categorically stated until then there is no executable decree. Subsequently, there is no order by any court fastening any liability to this C.D. 12. The Corporate Debtor submits that there is neither any liability, nor there is any enforceable decree/ award passed by an any forum/ court/ tribunal in respect of the alleged invoice Nos. I to 57 of the Award Dated: 21-06-2010 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mobilox Innovations Pvt. Ltd Vs. Kirusa Software PvtLTd, Hon'ble Supreme Court order dated 21.09.2017 in Civil Appeal No. 9405 of 2017. (7) Paramjeet Singh Vs. Maxim Tubes Company Pvt Ltd, Hon 'ble NCLAT order dated 20.11.2017 in Company Appeal (AT) (Insolvency) No. 150 of 2017. (8) International Road Dynamics South Asia Pvt. Ltd Vs. Reliance Infrastructure Limited, Hon ffe NCLAT order dated 01.08.2017 in Company Appeal (AT) (Insolvency) No. 72 of 2017. (9) Labdhi Enterprises Vs. Bararnati Agro Pvt. Limited, Hon ble NCLAT order dated 10.11.2017 in Company Appeal (AT) (Insolvency) No. 195 of 2017. (10) Sanjay BagrodiaVs. Sathyam Green Power Pvt. Ltd, Hon'ble NCLAT order dated 15.11.2017 in Company Appeal (AT) (Insolvency) No. 193 of 2017. (11) SAK Industries Pvt Ltd VsFenance Auto Ltd, Hon'ble NCLAT order dated 15.11.2017 in Company Appeal (AT) (Insolvency) No. 201 of 2017. The learned counsel for the petitioner, has therefore urged the Tribunal that the instant Company petition fulfills all the criteria prescribed under section of 9 of IBC so as to admit the case and pass all consequential orders of moratorium etc 6. Shri Dammalapati Srinivas, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute raised in the Company petition or there is a record of dispute in the Information Utility as per Section 9 (5) (ii).lt is a settled position of law by various judgments rendered by the Honble Supreme Court and Hon 'ble NCLAT as stated supra, and especially Mobilex judgment laid proposition of law. As stated supra, there is a long history of case, and it has suffered several orders. The Claim as stated supra, ultimately runs into two parts S.No. I to 57 and 58 to 82.So far as claim regarding to S.No,. I to 57 is concerned; it is settled ultimately by virtue of the orders passed by CRP No. 5334 of 2016 before the Hon'ble High Court of Judicature for the State of Telangana and for the State of Andhra Pradesh and the Hon'ble High Court at Hyderabad, in CRP No. 5334 of 2016 vide its Orders dated: 08-11-2016 and the claim with regard to other bills was admittedly to be under disputed as detailed supra. Moreover, the Company petition itself suffers various fundamental defects as pointed out by the learned Advocate General for the respondents in the reply as stated supra. Therefore it is to be held that there is a valid dispute rather no dispute as issue in question was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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