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TMI Blog2020 (9) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay and no one can claim condonation as a matter of right. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 542 of 2020 - - - Dated:- 4-9-2020 - Justice Venugopal M. Member (Judicial) And Mr. Balvinder Singh Member (Technical) For the Appellant : Mr. BP Singh Dhakray and Mr. Shakti Singh Dhakray, Advocates. For the Respondent : Ms. Purnima Maheswari, Advocate. JUDGMENT MR. BALVINDER SINGH, MEMBER (TECHNICAL) 1. The present appeal has been preferred by M/s Kuntal Construction Pvt. Ltd. (hereinafter referred to as Operational Creditor ) U/S 61 of the Insolvency Bankruptcy Code 2016 (hereinafter referred as I B Code ) challenging the impugned order dated 30th January 2020 passed in IB- 49(ND)2019 by the National Company Law Tribunal, New Delhi Bench (hereinafter referred to as Adjudicating Authority ) u/s 9 of I B Code, for the initiation of Corporate Insolvency Resolution Process against M/s Bharat Hotels Ltd. (hereinafter referred to as Corporate Debtor ) for the outstanding of amount of ₹ 14,89,966. 2. The brief facts of the case are that the Appellant is engaged in the business of civil works, carrying out structural wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the operational creditor that after hearing both the parties the Adjudicating Authority passed the interim order dated 30.04.2019 after recording the submission stated in the reply of the corporate debtor to pay the retention amount, which is as under: - ORDER Though, there is no agreement over the reconciliation of the accounts, the parties are granted one day more to reconcile the same. Without prejudice to the rights and contentions raised by the corporate debtor in their reply, they are ready and willing to pay the retention amount. To come up for arguments and final disposal on 3rd May 2019 The above Interim Order was not considered while delivering the final impugned Order dated 31.01.2020. 7. It is argued by the counsel for operational creditor that the impugned order dated 30.01.2020 passed by the Adjudicating Authority dismissing the petition of the operational creditor without considering the merits of the case. The impugned order has discussed the letter dated 07.10.2015 relating to full and final settlement but has not adjudicated two issues involved in the mutual settlement letter dated 07.10.2015, hence the operational creditor is highly prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil recovery forum and if any alleged amount is payable to the Appellant the same needs to be tried in Arbitration/Civil Court as per the clauses of Work Order/Contract subject to limitation. 11. It is also stated on behalf of the corporate debtor that the operational creditor has not come to this Appellate Tribunal with clean hands in as much as the Appellant has not stated the facts as pleaded or argued by it before the Adjudicating Authority. The Appellant has concealed the facts that it had neither disclosed nor filed the copy of full and final settlement letter dated 07.10.2015 written by them in the application before the Adjudicating Authority as well as the facts that the corporate debtor has duly sent Reply/Notice of dispute in terms of Section 8(2) (a) of I B Code dated 05.12.2018 to the operational creditor. 12. It is further argued on behalf of the corporate debtor that the operational creditor is estopped to plead otherwise as there has been no claim/outstanding liability of ₹ 14,89,967/- as alleged. The emails written by the operational creditor only states about the retention amounts. The operational creditor was fully informed about the retention mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same or reminding the Corporate Debtor that the agreed amount was not remitted. 8. In view of the aforesaid facts, this bench has observed that there is an existence of a prior dispute. Whether full and final settlement of the claim was made or not or whether the respondent was entitled to adjust the retention amount are disputed question of facts. The Corporate Debtor, prima facie has been able to corroborate the existence of a prior dispute which the petitioner had withheld. The factum of the retention amount being adjusted was also within the knowledge of the petitioner and therefore amounts to a prior dispute. The right to recover the retention money or any further outstanding liability being a contentious issue cannot be decided by this Bench in a Resolution petition. 9. In view of pre existing dispute resolution cannot be permitted. Prayer for initiating CIRP of the Respondent stands rejected. File be consigned to Record Room. 18. We have heard the learned counsel for the parties and perused the record. The email correspondences clearly showed that the operational creditor was intimated about the retention money being adjusted on account of defects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation utility. Whereas, on the other hand, Section 9 also states that the Adjudicating Authority reject the application so filed if the Operational Creditor has received a notice of a dispute from the Corporate Debtor . 20. From the above we can conclude that since there was a dispute existing prior to the issuance of Section 8 notice, the insolvency provisions cannot be invoked. The email communication of the Operational creditor dated 23.01.2016 states about operational creditor having knowledge of retention money being adjusted. Whether the corporate debtor was entitled to adjust the retention amount are disputed question of law and fact and shall be decided by the appropriate forum. 21. We also want to clarify that no one can take recourse that they have not been communicated the Judgment. It should be the duty of the counsel to keep a track after the matter is reserved for pronouncement. This is not a valid ground for requesting the condonation of delay. There should be a sufficient cause for the delay and no one can claim condonation as a matter of right. However, as we proceeded with the matter and heard both the parties in full length, the delay is impliedly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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