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TMI Blog2021 (6) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... as not provided any document to show that the Respondent company is insolvent so as to initiate corporate insolvency resolution process against the company. This petition has been filed with an intention to substitute recovery proceedings with an application under section 9 of the Code, 2016 which defeats the objects of the Code - Petition dismissed. - C. P. IB No. 187/BB/2020 - - - Dated:- 28-5-2021 - Rajeswara Rao Vittanala, Member (J) And Ashutosh Chandra, Member (T) For the Appellant : Anirudh Purushotham, Adv. For the Respondents : Aditya Narayan, Adv. ORDER Ashutosh Chandra, Member (T) 1. C.P. (IB) No. 187/BB/2021 is filed by M/s. S.N. Plumbing Private Limited ('Petitioner/Operational Creditor') under Section 9 of the IBC, 2016, R/w Rule 6 of the I B (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. AIGL Properties Limited, on the ground that it has committed default for an amount of ₹ 3,00,28,036/- (Rupees Three Crores Twenty Eight Thousand Thirty Six Only). 2. Brief facts of the case, as mentioned in the Company Petition, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Pvt. Ltd. has filed a Petition before this Adjudicating Authority bearing C.P. (IB) No. 141/BB/2017 against AIGL Properties Limited which was disposed of as infructuous vide Order dated 26.10.2018. The Application for withdrawal bearing MA No. 1231/2018 of the Operational Creditor from the CIR process was allowed by the NCLT, Mumbai vide its order dated 19.09.2019. (5) The Operational Creditor served a Demand Notice dated 28.11.2019 to the Corporate Debtor demanding the default amount of ₹ 3,00,28,036/-. The Operational Creditor received Reply from the Corporate Debtor dated 12.12.2019 which is misleading, mala fide and in bad faith to deny the genuine outstanding payments of the Operational Creditor. 3. The Company Petition is opposed by the Respondent by filing Statement of Objections dated 04.09.2020, by inter alia contending as follows: (1) It is contended that the Petition is barred by limitation. The Operational Creditor raised the invoices in 2015 and the last payment was made in 2015. Hence, it is wholly impermissible for the Operational Creditor to approach this Adjudicating Authority in February 2020. (2) It is contended that the claims of the Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maining amount under the said bill is not certified and cannot be said to be due and owing under the contract. All bills in respect of which the demand is presently made are not in compliance with Clause 6(c) of the Agreement, which requires that the running account bills which were to be raised monthly. Clause 6(C) of the Agreement is extracted below for ready reference: Payment based on monthly bills submitted by you against the progress achieved on the works at site, shall be verified and certified by the Project Manager for payment. The payment for the RA bill shall be released as follows - Certification shall be done within 07 days of submission of bill and payment shall be made within 07 days from the date of certification of the bill. In case it is found that the contractors has not submitted the bill as per the requirement of the work order or the measurement given are typical and not as per drawing/work done. Then the bill will be as per the actual work done, work orders terms and conditions with revised submission date. 4. The Petitioner has filed its Rejoinder dated 21.09.2020, by inter alia stating as follows: (1) Attention has been withdrawn to Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not spurious, hypothetical or illusory, the application of an operational creditor must be rejected. The Corporate Debtor without any proof is making spurious, hypothetical statement in guise of slipping it as dispute, which in fact was never raised by the Corporate Debtor prior to the issuance of the Demand Notice. 5. The Respondent has filed its written submissions as under: 1. It is submitted that the dispute regarding the claims made was raised prior to the demand notice on various occasions, including email dated 13.03.2015 issued by Manager, Projects Contractors of the Corporate Debtor. Reply Notice dated 27.10.2017 to Initial Demand Notice issued by the Petitioner, regarding the very same claim. Further, arbitration notice dated 16.04.2018 issued by the Respondent to the Petitioner. In the Arbitration Notice, it is stated that the Respondent was constrained to employ 3rd party contractors and suppliers for completion of the works. Apart from this the Respondent had to rectify seepages that occurred due to poor quality of work. Further, despite termination of Agreement vide email dated 13.03.2015, the Petitioner issued emails demanding payment against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 13.03.2015 where the Respondent had clearly terminated the arrangement, and RA Bill Nos. 14, 15 and 16 were never received and acknowledged by the Respondent. The said bills are fraudulent and forged and liable to be rejected. In fact the signatory of the bills had resigned from employment with the Petitioner even before the date of some of the invoices forming subject matter of the present claim. 7. It is submitted that Taxes deducted at source were only for RA Bill Nos. 1 to 12 (insofar as RA No. 12 is concerned, TDS is deducted at source only for amount due as per certification). Apart from this, additional remittance on RA Bill No. 1 as the same was inadvertently remitted on the total certified amount of the bill without deducting the mobilisation advance. Further, additional remittance of ₹ 600 is made which the for a payment of ₹ 30,000/- which the Petitioner had requested the Respondent to make directly to its contractor. The payment, however was never made since the same never became due. 6. Heard Mr. Anirudh Purushotham, learned Counsel for the Petitioner and Mr. Aditya Narayan, learned Counsel for the Respondent through Video Conference. We have ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. 4. After TWO days, as an afterthought you have replied -vaguely-to this saying on receipt of payment we will complete all the works though, we have clearly mentioned that the payment will be held back if you DO NOT take action on completion of work as per a schedule. Since you are NOT showing any interest in work progress we have decided to procure the Cellar ring main material and complete the work as we have to deliver the flats to customers by month end. 10. From the said email and the arbitration notice issued by the Respondent it is clear that there is a dispute regarding the quality of services of the Petitioner which need a trial at relevant forum and this forum cannot be misused as a substitute to recovery mechanism. 11. Further on perusal of the Master data available on the MCA Website, it is seen that no charges exist against the Respondent company, and it is active and compliant. The Petitioner has not provided any document to show that the Respondent company is insolvent so as to initiate corporate insolvency resolution process against the company. If the case is filed for mere recovery of the invoices then the same needs proper consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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