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TMI Blog2022 (3) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition. 2. The name of the Respondent/Corporate Debtor at the time of entering into the contract with the Petitioner was Nitesh Housing Developers Private Limited. The same was changed to NHDPL Properties Private Limited vide certificate of incorporation pursuant to change of name dated 26.06.2019. Again the said name was changed to the present name i.e. NHDPL South Private Limited vide certificate of incorporation pursuant to change of name dated 22.04.2020. Since, the registered office of the Respondent/Corporate Debtor is situated at Bengaluru, this Bench of NCLT is having jurisdiction against the Corporate Debtor. 3. The present application has been filed by the Operational Creditor against the Corporate Debtor in respect of the default amount of Rs. 66,82,795/- (Rupees Sixty Six Lakhs Eighty Two Thousand Seven Hundred and Ninety Five only) due towards the Work Order No. 4500004021 dated 25.09.2013. 4. It is stated that the Respondent issued a Work Order No. 4500004021 dated 25.09.2013 in favour of the Petitioner with respect to "Nitesh Columbus Square" construction project. Further, the Respondent extended the time limit of the said Work Order vide Amendment Agreement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-terms of the work order, "successful completion shall be the date when the contractor achieves completion of all work envisaged under the work order." Therefore, even as on 2016, when the applicant requested for the payment to be released for the alleged work to be carried out, the corporate debtor has specifically stated that unless the works are not completed no payment shall be released. (4) The present petition is totally misconceived and has been filed only to coerce the Respondent to pay certain sums which are disputed by the Respondent and legally unenforceable. The Applicant has not approached this Hon'ble Tribunal with clean hands and therefore the present petition is liable to be dismissed with heavy costs. It is further stated that the applicant is a financially sound and it has assets to a sum of Rs. 90 crores. Mr. K.B. Swamy is the authorised representative in the instant matter. (5) The Applicant proposed to construct world class residential apartments bearing the name and style "Nitesh Columbus square" at Square No. 174/4, 175/2, Kattigenhalli, North Taluk, Bellary Road, Bagalur Main Road, Bengaluru - 560063. The Petitioner approached the Respondent and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o coerce the Respondent company to adhere to its illegal demands and the same lacks bonafides and is liable to be dismissed on this ground alone. (10) He also relied on judgement passed on Hon'ble Supreme Court on 11.10.2018 in the matter of B.K. Educational Services Private Limited v/s Parag Gupta and Associates, Civil Appeal No. 23988 of 2017. 8. The Respondent has also filed its Additional Statement of Objections on 06.12.2021 vide Diaiy No. 3382, by inter alia contending as under: (1) The present petition has been filed by the Petitioner against the Respondent for a claim of Rs. 66,82,795/- for water proofing inter alia work allegedly performed by the Petitioner to the Respondent. (2) It is stated that there is a pre-existence of dispute to the nature of work on the basis of which the present petition has been preferred. The work performance provided by the Petitioner to the Respondent was not satisfactory and defective in the quality of the products. The Respondent vide letter dated 12.09.2014 and 3.3.2016 informed the Petitioner that the product quality installed by the Petitioner is defective and requested the Petitioner to come forward to replace the same and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven then the same is liable to be dismissed on the ground of being barred by limitation period. The cause of action in respect to the work order dated 26.9.2013 on the basis of which the present petition is preferred has begun to run from 26.09.2013 itself and the same has also been admitted by the Petitioner in Part IV of its petition. As per Section 238A under I & B Code, 2016 and Article 137 of the Limitation Act, 1963 petition must be filed within 3 years from the date of cause of action. The instant petition has been filed with a delay of 470 days after the expiry of the limitation period and also not been filed with any application for condonation of delay stating any cogent reason for such delay. (7) The present petition has failed to satisfy the minimum amount to initiate the petition before this Tribunal. As per the notification dated 24.03.2020 vide S.O 1205 (E) the minimum amount to trigger Insolvency and Bankruptcy petition against the Respondent prescribed as per Section 4 of I & B Code, 2016 needs to be satisfied. However, the claim amount in the present petition has failed to fulfil the criteria of minimum default amount as per Section 4 of the I & B Code, 2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly certified by the Project In-charge after due inspection of the work at the Project site as per the Work Order and till date the Corporate Debtor. (4) It is also submitted that the 1st RA bill raised on 22.12.2014 is accounted by the Operational Debtor in its books of accounts on 13.02.2015. Hence, it is evident that the Petitioner has approached this Hon'ble Tribunal, well within the limitations prescribed by law. Further, submits that the Operational Creditor has issued the Demand Notice u/s. 8 of the IBC with respect to the principle amount. However, as the Petitioner has claimed an interest of 24% PA over the principle amount in the present Petition as the Petitioner is a MSME registered unit. 10. Heard Shri H.M. Harsha, the learned Counsel for the Petitioner and Shri Udayshankar, learned Counsel for the Respondent and have also perused the pleadings carefully. 11. In the back drop of the above contentions submitted by both sides, the following issues fell for our consideration: (1) Whether the CP is filed within the period of limitation (2) Whether there were any pre-existing disputes between the parties in respect of the claimed operational debt. 12. As per th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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