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TMI Blog2020 (10) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... ed being aggrieved by orders passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court -II) in (IB)-1238 (ND)2019. The said application under Section 9 of Insolvency and Bankruptcy Code, 2016 (I & B Code-In Short) was filed by Respondent No. 1-M/s. Arcee Trading Corporation claiming to be Operational Creditor. After hearing the parties, the Application came to be admitted by Impugned Order dated 23rd January, 2019 and 'Corporate Insolvency Resolution Process' (CIRP) was initiated for Corporate Debtor appointing Respondent No. 2 as 'Insolvency Resolution Professional'. 2. It is stated that 'CIRP' is at the stage where 'CoC' has decided to change the IRP. 3. The Operational Creditor claimed that the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th November, 2017 without revoking the work order of the Operational Creditor and called upon the Corporate Debtor to stop the Construction/Project being carried out by other person. The Operational Creditor also claimed that he had to recover Rs. 1,07,55,942/- as per bill dated 24th August, 2018 and other dues. 7. The Learned Counsel for the Appellant has then pointed out Reply which was sent by the Corporate Debtor to such Notice on 20th December, 2018. The Reply was sent in Hindi copy of which is at Page 138. The translation is available at Page 141 and Learned Counsel referred to Paragraphs 3 and 4 of this Reply which was sent by Corporate Debtor. The contents read as under: "3. As per Notice Para No. 3 is wrong as above stated work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or identified the signatures on the measurement sheets. The Adjudicating Authority then went on to observe in Para 18 of the Impugned Order as under: "18. After hearing submissions of both the parties, this Bench is of the view that the plea taken by the Corporate Debtor regarding non-execution of the work does not merit any consideration as the then employee of the Corporate Debtor has himself identified his signatures on the Measurement Sheets before this Bench. Further, the Ld. Counsel for the Corporate Debtor did not dispute that the Petitioner firm had undertaken and carried out the construction work. In addition to this, the Corporate Debtor has failed to bring anything on record which could corroborate the allegations made in its l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the dispute was raised prior to the issuance of the Demand Notice under Section 8 (1) or invoice. 10. The Learned Counsel for the Respondent/Operational Creditor has been heard and it is submitted by the Learned Counsel for the Operational Creditor that it had put the necessary documents before the Adjudicating Authority and the Adjudicating Authority after examining the documents and hearing the learned Counsel for the Operational Creditor and after talking to the ex-employee of the Corporate Debtor referred to the measurement sheets and rightly came to a conclusion that the dispute being raised by the Corporate Debtor regarding non-execution of work did not merit any consideration. The Learned Counsel for the Respondent/Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority then photocopied the measurement sheets and subsequently went on to make observations as seen in Para 18 referred supra. When the above developments before the Adjudicating Authority are considered it is apparent that the Adjudicating Authority took upon itself the responsibility of calling & cross-examine witness and giving a finding with regard to the argument which was raised by the Corporate Debtor that no work was conducted by the Operational Creditor. The Adjudicating Authority appears to have ignored the disputes which were already raised in Paragraphs 3 and 4 of the Reply Notice dated 20.12.2018 which included the dispute that the Operational Creditor had without consent sub-contracted the work and that because of the delay t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to negligible progress. The Photocopy of the handwritten document is at Page 228 and is difficult to read the handwritten document. The Learned Counsel for the Respondent/Operational Creditor stated that this document did not have any date. The Learned Counsel for the Appellant/Corporate Debtor however submitted that the letter was dated 7th February, 2018 but he has also not been able to show any date. As such we will not dilate on this document any further. 15. We find that there was a pre-existing dispute in this matter when Demand Notice under Section 8 was issued and we find that it was not appropriate for the Adjudicating Authority to have proceeded in a manner as if a trial is being conducted. We proceed to accept this Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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