9911796707
TMI Blog2020 (10) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter revised order value at stage II of Rs. 3,54,21,862/- vide subsequent agreement, dated 07th June, 2016 and Revised Change Order-1 dated 14.09.2016 for electrical works at site M/S. Triumph Resort, 336/1-A, Village-Calwaddo, Benaullim, Goa-403716. Pursuant to said order, the operational Creditor from 24.06.2016 to 29.12.2018 had executed the works for Hotel Triumph Resort, Goa and on the such execution, vide their Fourteen Invoices-TIGO/SI/00001/1617 dated 11.07.2016 for Rs. 509,893/-, TIGO/SI/00002/1617 dated 20.08.2016 for Rs. 6,71,410/-, TIGO/SI/00003/1617 dated 08.09.2016 for Rs. 7,87,284/-, TIGO/SI/00004/1617 dated 06.10.2016 for Rs. 13,35,112/-, TIGO/SI/00005/1617 dated 25.11.2016 for Rs. 45,36,282/-, TIGO/SI/00006/1617 dated 11.01.2017 for Rs. 7,72,779/-, TIGO/SI/00007/1617 dated 14.02.2017 for Rs. 25,90,510/-, TIGO/SI/00008/1617 dated 24.03.2017 for Rs. 31,96,138/-, TIGO/SI/00009/1617 dated 01.05.2017 for Rs. 32,32,495/-, IGO/SI/000010/1617 dated 20.06.2017 for Rs. 52,50,4355.77/-, TIGOSI003/1718 dated 01.09.2017 for Rs. 29,92,633/-, TIGOSI003/1718 dated 20.09.2017 for Rs. 20,96,294.03/-, TIGOSI004/1718 dated 29.03.2018 for Rs. 17,06,308.39/-, TIGOSI004/1718 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of dispute" about the quality and quantity of work executed by petitioner under award of contract on 20.05.2016, 07.06.2019 and 14.09.2016 so much so that Corporate Debtor was forced to appoint a third party to undertake the work. The existence of dispute is very much evident from the emails placed on record by the petitioner dated 05.11.2018, 01.11.2018 and 04.10.2019 written by the representative of Corporate Debtor. ii. That existence of dispute due to non completion of work awarded is evident from the report of the experts appointed by the Corporate Debtor, IM Cost Management Pvt. Ltd.., dated 05.03.2019 copy of which was shared and discussed with petitioner by email dated 29.04.2019 but petitioner preferred to abandon the process and rushed to file instant petition to exert pressure on the Corporate Debtor. iii. The petitioner intentionally has not placed on record the entire trail of emails exchanged between the petitioner and the corporate debtor substantiating existence of dispute and the entire agreement executed between the parties and the same are being placed on record by the Corporate Debtor. iv. That the petitioner in the demand notice issued claimed outst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 11.04.2019 but by filing written synopsis at page 9 of the written synopsis, he claimed that he sent the reply to the notice dated 11.04.2019 by email dated 29.04.2019, which he has annexed at page 261 of Volume - II of the reply, whereas the claim of the applicant is that in response to the demand notice, the Corporate Debtor has not sent the reply, therefore, we have gone through the email dated 29.04.2019, which Corporate Debtor has annexed at page 261 of Volume-II of the reply and on perusal of the same, we find that nowhere it is mentioned that this email is in response to the demand notice delivered by the applicant upon the respondent. 9. At this juncture, we would also like to refer demand notice dated 11.04.2019, which was sent by the applicant on the registered address of the Corporate Debtor on 12.04.2019 and the same was duly delivered on 16.04.2019, which would be evident from the tracking report enclosed by the applicant at page 83 of Paper book. When we shall read the tracking report of the Indian Post, which is at page 83, alongwith the averments made by the respondent in the written synopsis at page 9 then we are of the considered view that the applicant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Section 9: Application for initiation of corporate insolvency resolution process by operational creditor. - (1) After the expiry of the period often days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) A copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) An affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt [b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence of a default, the operational-creditor is required to deliver a demand notice of unpaid operational debt or copy of the invoice demanding payment of the amount involved in the default to the Corporate Debtor in such form and manner as may be prescribed and the Corporate Debtor after the receipt of the demand notice or copy of the invoice mentioned in Section 8(1) of the Code, within ten days of the receipts of the notice bring to the notice of the operational-creditor the existence of disputes or show the documents that the payment of unpaid operational-debt has been made. Section 9 makes it clear that after the expiry of period of ten days, from the date of delivery of the notice or invoice demanding payment, if the Operational Creditor does not receive payment from the Corporate Debtor or notice of the dispute under Section 8(2) of the Code, only in that case the Operational Creditor may file an application for initiation of the CIRP. If we shall read these two provisions together then we find, before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act) (ii) Whether the documentary evidence furnished, with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act." 12. At this juncture, we would also like to refer the decision reported in the case of Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 271, and we find that Hon'ble Supreme Court in Para 14 of the judgment held that: "It is equally well settled that in interpreting a statue, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Further: (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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