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TMI Blog2019 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... APATRA, MEMBER (TECHNICAL) For Operational Creditor : Mukul Dev Sharma and H.R. Khan, Advs. For The Respondent : . Mahjabeen Tawweer and Shakti Verma, Advs ORDER S. K. Mohapatra, Member 1. Mr. Narender Sharma, claiming as the operational creditor has filed this application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 (for brevity the Rules ) for initiation of Corporate Insolvency Resolution Process in respect of Respondent Company M/s. Vistar Construction Private Limited, claimed to be the Corporate Debtor. 2. The Respondent M/s. Vistar Construction Private Limited against whom initiation of Corporate Insolvency Resolution Process has been prayed for, is a company incorporated on 09.10.1992 under the provisions of the Companies Act, 1956 having its registered office at office C- 23, G.K. Enclave-1, New Delhi-110048. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place, is the Adjudicating Authority in relation to the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2017 and 27.07.2017 respectively with false and frivolous grounds in order to avoid the payment of legal dues of the applicant. 9. Consequently on 29.08.2017 applicant had filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016 read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. However due to some technical defect, the application was withdrawn and liberty to file fresh petition was allowed. 10. Subsequently on 05.10.2017 a fresh demand notice under Section 8 of the Code was sent by the operational creditor to the corporate debtor and its directors for the payment of unpaid operational debt of ₹ 12,22,518/- (Twelve lakhs twenty two thousand five hundreds and eighteen only) along with interest @ 18% per annum. 11. In response to the demand notice dated 05.10.2017 corporate debtor replied on 16.10.2017 in which it is alleged that false and frivolous grounds were taken to avoid the payment of legal dues of operational Creditor. It is stated that the company has suffered loss of ₹ 15,00,000/- lacs due to default committed by applicant operational creditor. It is further stated that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant was not in compliance with the terms of the employment contract with respondent, as he had to give one month written prior notice before leaving his employment with respondent. 17. It is submitted that the sudden and immediate resignation of applicant and as he had stopped coming to the office immediately after that had caused great uncertainty and effected the execution of the work in the project. The said project was to be completed within a deadline as committed to the Client/Costumers/Allottees of the project. It is alleged that it has caused further financial loss to Respondent as the applicant failed to formally hand over the details of work executed by him. 18. It is further stated that respondent did not handover all the requisite documents, including working drawings, schedules, building plans, etc. relating to the execution of the project in the site and consequently, the new engineer who had replaced the applicant was not able to execute the work with the pace which was supposed to be done for a period of three months. Accordingly, Respondent had to incur a financial loss of INR 15,00,000/- (appx.) due to the wilful negligence and default committed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was ignored by the applicant. 24. Heard the learned counsels for the parties and perused the case papers. 25. The main contention of the applicant is that the notice under Section 8 of the Code was issued to the respondent company first time on 21.07.2017 to which respondent has replied only on 27.07.2017. It is argued that respondent company cannot dispute the unpaid amount for the first time in his response to the demand notice. It is accordingly contended that no dispute was pre-existing and therefore the application under Section 9 should be allowed. 26. It is pertinent to mention here that applicant had earlier filed an application under Section 9, which was numbered as IB No. 321(ND)/2017. Prior to filing of the said application, notice under Section 8 was issued on 21.07.2017. However, as the notice was addressed to 3C DEVELOPERS which is a different entity from that of the respondent company and as prior Section 8 notice was not issued to the respondent company, applicant prayed for withdrawal of the application. Accordingly, IB No. 321(ND)/2017 was dismissed as withdrawn on 18.09.2017 with liberty to file fresh petition. 27. Pursuant to the liberty granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of the project in the site and consequently, the new engineer who had replaced applicant was not able to execute the work with that pace which was supposed to be done for a period of three months. (e) Respondent had to incur a financial loss of INR 15,00,000/- (appx.) due to the wilful negligence and default committed on the part of Applicant for the delay in execution of the project. (f) Two legal notices were sent to the applicant on 20th and 25th September, 2017 for recovery of aforesaid amount. 30. It is seen that various disputes raised relates back to the date of resignation. There is a dispute as to whether it is a suomoto resignation or a forced one. Issues have been raised on the breach of employment contract ; on the ground that required advance notice was not given before stopping to attend office. In addition, there has been a counter claim of loss. Such plausible contentions require further investigation and the dispute relates to the date of resignation followed by its effect. 31. At this stage it is immaterial to consider who will succeed. Besides this forum, in the present proceeding, is not supposed to examine the merit of the disputed claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuing. The fact of existence of dispute has been informed within the stipulated period in the replies sent under section 8 (2) of the Code. 38. The relevant sub-section 5 of Section 9 of the Code runs as under: Section 9 (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) Admit the application and communicate such decision to the operational creditor and the corporate debtor if- (a) . (b) . (c) . (d) No notice of dispute has been received by the operational creditor or ............... (ii) Reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) .. (b) .. (c) .. (d) Notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) .. (Emphasis given) 39. In the present case notice under Section 8 was duly replied within the period prescribed by bringing to the notice of the operational creditor the existence of dispute. There is substance and plausible contention in the replies and notices of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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