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TMI Blog2020 (2) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... his petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as Rules) by M/s. CTC Projects Pvt. Ltd. (Operational Creditor) for initiating the Corporate Insolvency Resolution Process (CIRP) in the case of M/s. Hind inns Hotels Ltd. (Corporate Debtor). As per master data at page 252 of the petition, the registered office of the Corporate Debtor is at Plot No.15, Industrial Area, Phase-I, Chandigarh-160002. Therefore, the jurisdiction lies with this Bench of the Tribunal. The application is signed by Sh. Chandanpal Singh Chawla, Director of the operational creditor. Board Resolution dated 05.02.2018 giving authority to him is at Annexure A-12 of the petition. The affidavit of Sh. Chandanpal Singh Chawla, Director of the operational creditor verifying the contents of the application is at page 36 of the petition. 2. It is stated that the operational creditor was awarded a work order dated 19.08.2011 by the corporate debtor for civil work of construction of Ginger Hotel at Plot No.15, Industrial Area, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk much beyond the period of 12 months within which the completion has to be achieved, as borne out from the Virtual Completion . Certificate dated 04.04.2014 (page 87 of the petition). Further, it is stated that the applicant failed to cure the defects during the Defect Liability Period (DLP) and in fact, it abandoned the works claiming subsequently that the works were actually beyond the DLP (page 134-145 of the paper book) and the respondent had to engage third party contractors at its own expense and spent a sum of ₹ 49,00,119 for carrying out required rectifications. Correspondence in this regard is attached as Annexure R-1 of the affidavit. Therefore, no Defect Liability Certificate was issued by the respondent in terms of clause 6.29 of the contract. It is also submitted that no affidavit in accordance with section 9(3) of the Code has been filed by the applicant operational creditor since the affidavit filed along with the petition does not contain any assertion whatsoever to the effect that no notice given by the corporate debtor relating to, a dispute of the unpaid operational debt. It is stated that the operational creditor is not entitled to release of the retenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inger Hotels sent a mail to the operational creditor stating that the operational creditor creditor had attended all the concerns and rectified the same as and when required and the liability is still continuing as the corporate debtor has not paid the retention money. The e-mail dated 21.07.2015 (page 135 of the petition) is as under:- As we spoke - We very much appreciate that you have attended all our concerns and rectified the same as and when required. Keeping the same into consideration, kindly please ask someone from your office to attended this issue as a Special case request, which shall be of great help. 12. In view of the above facts, the contention of the learned counsel for the corporate debtor that the debt is barred by limitation cannot be accepted. 13. Learned counsel for the corporate debtor has pleaded that as per the work order, the defect liability certificate was to be requested by the operational creditor but no such request was made and therefore, the defect liability period cannot be said to have expired. 14. We find that in the virtual completion certificate issued by the corporate debtor on 04.03.2014 (Annexure A-3 of the petition), it is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication pointed out during defect liability period. 16. In the rejoinder, the operational creditor has stated that as per e-mail dated 21.07.2015 (supra), the representative of the employer/owner/corporate debtor has specifically mentioned that all the concerns have been rectified as and when required during the defect liability period. 17. We find that as per para 6.29.1 (a) of the terms and conditions (supra) the defect period is 12 calendar months after completion of the works as certified under Clause 6.28. Further, the virtual completion certificate of 04.03.2014 (supra) states that the defect liability period shall commence on 31.03.2014 and will cover the entire period of one year up to 01.04.2015. The e-mail dated 21.07.2015 (supra) clearly accepts that all concerns have been attended to and rectified as and when required. The e-mail dated 13.07.2015 at page 137 of the petition from the Hotel Manager, Ginger Chandigarh is for redoing the slope in -1 parking first basement and regarding this work, in the e-mail dated 21.07.2015 (supra) it is requested to ask someone from your office to attend this issue as a Special case request, which shall be of great help. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of the invoices by the other contractors through whom the work was got done will be filed through affidavit on the next date, no such affidavit was filed. Therefore, no evidence of incurring the claimed expenditure of ₹ 49,00,119 for the purpose as claimed above has been filed. Moreover, the e-mails at Annexure R-1 (colly) relate only to cracks developing on site and water accumulation absorbed in -1 parking on site. In the e-mail dated 15.11.2014 at page 17 of the reply, the operational creditor has written to the corporate debtor that the cracks developed are superficial hair line cracks on plaster surface only and these are not at all structural cracks and the defect can be said to be removed in view of the e-mail dated 21.07.2015 (supra). We have discussed above that in respect of water accumulation in -1 parking on site, the redoing of slope was as a Special case request. 21. The learned counsel for the corporate debtor has pleaded that the claim of interest @ 18% per annum on the alleged retention money due is not justified in view of Clause 8.1.2. of the contract, which specifically states that no interest is payable to the contractor on the retention mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. 26. We have gone through the contents of the application filed in Form No. 5 and find the same to be complete. As discussed above, there is an unpaid operational debt amounting to ₹ 24,74,085,/- plus interest @18% p.a.. Copy of the work order dated 19.08.2011 is attached as Annexure A1. Moreover, demand notice in Form No. 3 was also sent on 01.03.2018 stating that the amount due from the corporate debtor to the operational creditor is ₹ 37,72.979/- including interest. We have held above that the demand notice in form No.3 dated 01.03.2018 was properly delivered by the operational creditor and the reply has been examined above and found to be not acceptable. IRP is not proposed in Part III of Form No.5. 27. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, we admit the petition for initiation of the CIRP process in the case of the Corporate Debtor M/s. Hind Inns Hotels Limited and direct moratorium and appointment of Interim Resolution Professional as below. 28. We declare the Moratorium in terms of sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 16 says that the Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (3),recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. 32. In this regard a letter bearing File No. 25/02/2019-NCLT dated 28.06.2019 has been received from the National Company Law Tribunal, New Delhi forwarding therewith a copy of letter No.IBBI/IP/EMP/2018/02 dated 24.06.2019 along with the guidelines and the panel of resolution professionals approved for NCLT, Chandigarh Bench for appointment as IRP or Liquidator. The panel is valid for six months from 01.07.2019 to 31.12.2019. We select Ms. Mandeep Gujral appearing at Serial No.11 of the panel to be appointed as Interim Resolution Professional 33. The Law Research Associate of this Tribunal has checked the credentials of Ms. Mandeep Gujral and there is nothing adverse against her. 34. In view of the above, we appoint Ms. Mandeep Gujral, IP Registration No. IBBI/IPA-001/IP-P00507/2017-18/10908, e-mail Id: [email protected], Mobile No. 9814228288 as the Interim Resolution Professional, with the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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