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TMI Blog2022 (1) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor/Applicant did not file any claim before the Resolution Professional and therefore he is not entitled to make any claim at this point of time regarding Invoice No. 5. Learned counsel for the Corporate Debtor also submitted that the original agreement between the Corporate Debtor and PWD stood terminated with effect from 23.03.2018 and therefore it cannot be accepted that the Operational Creditor carried out any work after the termination of the said contract - It is seen that the 6th Invoice dated 30.11.2018 i.e., much after the expiration of the main agreement. Learned Counsel for the Corporate Debtor would therefore submit that the Petitioner is not entitled to have any claim on the basis of Invoice Nos. 5 6. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor of the M/s. Anand Company, Operational Creditor for initiation of CIRP against the Respondent/Corporate Debtor for non-payment of operational debt of ₹ 44,65,745.68/-. It is the case of the Operational Creditor that the Corporate Debtor was awarded a contract for construction of residential complex for judicial staff at Sector 19, Dwarka, New Delhi, by PWD (B R). The Corporate Debtor approached the Operational Creditor for sub-contracting of the electrical work and compounding lighting at the said residential complex. Accordingly, a work order dated 27th May, 2015 was executed between the Operational Creditor and Corporate Debtor. As per Clause 1 (A) of the said work order, the Operational Creditor was liable to pay 92.68% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nouncement was made calling upon claims of Financial and Operational Creditors against the company. However, no claim was submitted by the Operational Creditor with the Interim Resolution Professional/Resolution Professional even though the Operational Creditor was fully aware of the CIRP proceedings and the Resolution Plan was subsequently approved by the Hon'ble NCLT Kolkata Bench on 18.04.2018. An appeal filed against the said order was also dismissed by order dated 16.08.2019 passed by the Hon'ble NCLAT. It is therefore submitted by the Corporate Debtor that the approved Resolution Plan is binding on all and supersedes all other laws or all stakeholders. In reply to above contention, the Operational Creditor has submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be resolved by Arbitration. 7. The Corporate Debtor has submitted in its reply affidavit that disputes were raised by letter dated 14.09.2016 relating to the amount of debt, quality of service and breach of representation or warranty and also terminated the work order with immediate effect. Further, the Corporate Debtor filed supplementary affidavits bringing it to the notice of the Tribunal about the pendency of the arbitration proceedings before the Delhi High Court. 8. The Applicant/Operational Creditor has filed this present application under Section 9 of IBC, 2016 basing his claim on six invoices out of which according to him the amount in first four invoices have been paid, this fact has also been admitted by the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Be that as it may, since the dispute revolves around Invoice Nos. 5 6, it has to be seen as to whether the Operational Creditor has actually done the work for which he has raised Invoice No. 5 6 and as to whether there is any default to that effect by the Corporate Debtor. The Corporate Debtor in its reply affidavit has stated that in a proceeding under Section 9 of the IBC, 2016 before the Hon'ble NCLT Kolkata Bench, CIRP were initiated and subsequently the Resolution Plan was approved by the Tribunal vide order dated 18.04.2018. It is seen from the record that the Invoice No. 5 was dated 30.09.2017 which is prior to the approval of the Resolution Plan. However, the Operational Creditor/Applicant did not file any claim before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king it to submit the final measurement of the work and the bill. The Operational Creditor has also filed a copy of the letter dated 20.07.2018 addressed to the Corporate Debtor requesting it to release an amount of ₹ 44,17,530.68/-. The said letter bears endorsement purportedly by the Corporate Debtor which states that the bill will be processed for PWD certification. However, the said endorsement has not been properly stamped. Therefore, it cannot be presumed that the email dated 20.07.2018 and the letter dated 20.07.2018 will have any relevancy to show that the Applicant has done the work during the relevant period for which it has raised Invoice Nos. 5 6. 13. On the basis of above discussion, we have arrived at a conclusion t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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