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TMI Blog2021 (8) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... on 22.03.2017 with the petitioner, it amounts to admission of liability. The bench notes that it is established rule that when a party issues acknowledgment of its liability in writing the period of limitation starts afresh. Therefore, the Bench has no doubt that the respondent unequivocal admission of liability negates the contention of the petitioner that the claim is time barred - the Bench is of clear view that there is a debt in terms of Section 5(21) of Code and there is a default in terms of Section 3(12) of Code are clearly established and the debt is also within limitation. Thus, the present Company Petition satisfies all the necessary requirement for admission. Petition admitted - moratorium declared. - C. P. No. 4028/IBC/MB/2018 - - - Dated:- 10-8-2021 - Hon ble Shri H.V. Subba Rao, Member (Judicial) And Hon ble Shri Chandra Bhan Singh, Member (Technical) For the Applicant : Mr. Shashwat Rai, Advocate For the Respondent : Mr. Amit Ghate, Advocate ORDER Per : Shri Chandra Bhan Singh, Member (Technical) 1. This Company petition is filed by Alfa Fa ade Systems Private Limited (hereinafter called Operational Creditor ) seeking to initiate Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs Twenty-Seven Thousand and Eighteen Rupees Only). The said interest amount has been calculated at the rate of 18% per annum, from the due date of payment till 06.09.2018, because the Operational Creditor being a Micro, Small and Medium Enterprise (MSME) bearing Registration No. 270251202085 is entitled to interest at three times the prevalent bank rate, in accordance with the Section 17 r/w Section 16 of Micro, Small and Medium Enterprises Development Act, 2006. The lowest bank rate during the period of the transaction was 6% therefore, interest is calculated @ 18% per annum. e. The total amount of debt due from the Respondent to the Operational Creditor in terms of the said Admitted Principal Amount and Interest is the aggregate sum of ₹ 1,83,58,490/- (Rupees One Crore Eighty-Three Lakhs Fifty- Eight Thousand, Four Hundred and Ninety Only). The principal amount under the 24 invoices became due and payable on the respective due date of these invoices. The Respondent has never disputed its liability towards the amount due to the Operational Creditor, in spite of the Operational Creditor having addressed on multiple occasions inter alia demand letters for payment on 31.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Pune. The Operational Creditor has intentionally suppressed from this tribunal relevant communications between the parties which specifically mentioned about the disputes raised by the respondent during the execution of the work. The Corporate Debtor further submitted that during the execution of the work the Corporate Debtor complaint to the Operational Creditor about the delay in installing performing scope of work for fa ade and glazing work was mention in Annexure -1 of letter of award dated 01.03.2013 of the Corporate Debtor project. The interest free retention amount of 5% of running bill value was retained by the Corporate Debtor and also have eligible for performance Guarantee as agreed by the Operational Creditor. The petitioner cannot be held eligible for payment from the Corporate Debtor till the defect liability period was over for that purpose and accordingly the Operational Creditor though at some instance for raising the bill claimed that 100% of the work has been done as per the letter of award in the Corporate Debtor projects but after inspection it was found by Corporate Debtor that the said work was an incomplete work; and merely for the purpose of raising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent further submitted that as per Section 9(5)(i)(d) of the Code, the petition is admitted if no notice of dispute has been received by the petitioner. In the present case, from day one, during the execution of work, the respondent was not at all satisfied with the way of the execution of work was carried out by the petitioner. f. The respondent submitted that the petitioner has failed to furnish along with present petition an affidavit to the effect that there is no notice given by Corporate Debtor relating to the dispute of the unpaid Operational Debt. In the present case, the dispute was raised by the respondent by replying to the statutory notice issued by the petitioner to Marvel Realtors and Developers Limited and further even during the execution of the work it could be seen through that for the part performance of the respondent can be possible only wherein the completion of the work by the petitioner as per the LOI and herein the petitioner also liable for the penalty as per the clause no. 11 of the LOA dated 01.03.2013 and email communication between the parties that the dispute was raised by the respondent. g. For the reason set out, the respondent submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,18,08,221/- subject to deduction of penalties and liquidated damages of 10% amount towards default LOA dated 1st March 2013 5. The Bench notes that the sharing of ledger account in the ordinary course of business amounts to an unequivocal admission of its liability to the other party. 6. The respondent has contended that there exists an ongoing dispute between the parties. In support of this contention, the respondent has relied on email dated August 2014 and October 2014. These emails relate to removing chipped sliding door from C-Core and exchanging it with D-Core, since it looks very ugly. Total estimated cost ₹ 7,500/-. The second email on October 2014 related to sliding door, door-closers not working . 7. The Bench also notes that vide an email dated 09.08.2014 the petitioner s representative provided cost of exchanging C-core doors with D-Core doors to ₹ 75,00/- and thereafter no complaints was raised by the respondent. Similarly, vide email dated 11.10.2014, the petitioner s representative provided contact details of person allocated by the petitioner to fix the Doorma door-closers and thereafter no complaints were raised by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Corporate Insolvency Resolution Process (CIRP) is ordered against Marveledge Realtors Pvt. Ltd. b. Since the Financial Creditor has not suggested the name of any person to perform the duties of the Interim Resolution Professional (IRP) in the petition, this Bench is appointing the IRP from the list furnished by the Insolvency and Bankruptcy Board of India (IBBI). This Bench hereby appoints Mr. Pramod Dattarm Rasam ([email protected]), Insolvency Professional, Registration No: IBBI/IPA-001/IP-P00722/2017-2018/11259 as the interim resolution professional to carry out the functions as mentioned under the Insolvency Bankruptcy Code, 2016. c. The Operational Creditor shall deposit an amount of ₹ 5 Lakh towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. d. That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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