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TMI Blog2022 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... retention amount retained by the Respondent. The retention money was liable to be released immediately after expiry of 12 months from the date of raising the last bill on completion of the work in respect of 'Nitesh Logos' project. The last invoice was raised on 07.03.2015, which was duly paid by the Respondent. Hence the limitation of 3 years for the unreleased retention money commences on 07.03.2016 and since the instant C.P. having filed on 09.01.2018, is well within limitation. Once the maximum period from the date of completion of the project expire, and when there was no specific demand from the Respondent to complete any unfinished work or to repair any defective finished work, subsequent to completion of work, the Respondent is liable to release the retention amount to the Petitioner. Simply mentioning defect in work without specifically linking the same for returning the retention money, cannot be treated as a pre-existing dispute with regard to the retention money. Petition admitted - moratorium declared. - CP (IB) No. 18/BB/2018 - - - Dated:- 23-3-2022 - Ajay Kumar Vatsavayi, Member (J) And Manoj Kumar Dubey, Member (T) For the Appellant : H.M. Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 5% of the invoice amount. The Petitioner has raised the last invoice on 07.03.2015, which is also paid by the Operational Debtor, but the retention amount at 5% which amounts to ₹ 5,07,340.55/- is due since 07.03.2016 i.e. 12 months from the date of raising the last bill on completion of the work with respect to Nitesh Logos project. 6. However, the Petitioner has reminded for payment of amount vide email dated 20.02.2016 which is based on the Certificate of payment, but the Respondent vide its reply mail dated 20.02.2016 demanded completion of work in Nitesh Flushing Meadows and also to provide 10 years warranty certificate. Subsequent, to the above demand made by the Petitioner has failed to make the payment which is claimed herein and as opted to complete the pending work by hiring 3rd party contractors. Hence, the Respondent failed to make the payment as per the terms of the work order. 7. It is also stated that the Operational Creditor has issued the Demand Notice in Form 3 dated 27.11.2017 to the Respondent and the Respondent has given any reply to the said Demand Notice. 8. The instant Petition is opposed by the Corporate Debtor by filing its common Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi. The Respondent also believing the tall and false words of the Petitioner issued a work order dated 20.07.2011 for carrying out water proofing work at Nitesh Flushing Medows and work order dated 26.09.2013 at Nitesh Columbus Square which was accepted unconditionally by the Respondent. The terms and conditions of the said work order were discussed well in advance between the parties. Upon agreeing the said terms and conditions mutually that the Respondent started its water proofing work at the said site. vii. It is stated that right from the day the Petitioner started its work on the building, there have been several faulty works been carried out by them. The said defects were immediately brought to the notice of the officials of the Respondent. The officials of the Respondent assured the Petitioner that the defects in the construction would be sorted at the earliest and till such time the balance payment to be made can be kept on hold. Upon accepting the work order, the Petitioner has specifically agreed to complete the said work within few month. The fact that the completion certificate hasn't been issued to the Petitioner itself shows that the works carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o work orders executed by two different legal entities under one petition which is impermissible. It is settled proposition of law that only one cause of action can be brought before a court of law and different cause of action of different companies cannot agitated before the courts which is now being tried to be done by the Petitioner. The present petition is liable to be dismissed only on this ground in limine. iii. The Petitioner is not the party in whose favour the work order agreement dated 20.07.2011 produced at Page No. 17 of the petition has been entered. The petitioner name is Sree Vinayaka Buildwell Projects Private Limited whereas the work order is issued in favour of Sree Vinayaka Constructions. As the agreement has not been entered between the Petitioner and the Respondent therefore, the Petitioner does not have any right to file the present petition on the basis of alleged dues of Respondent to another company. It is a settled proposition of law that a third party who has not executed any agreement with the Respondent cannot sue the Respondent and that too under I B Code, 2016. As stated the Petitioner does not have any locus standi to file the present petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll release the payment after the rectification of the pending work has been completed. The email dated 3.06.2015, 24.12.2015 and 20.02.2016 has been attached as Annexure A2 to the commons statement of Objections. vii. The General Terms and conditions clause 1 of the work order dated 4.11.2011 issued by the Respondent to the Petitioner has also been clearly mentioned that 'product services is found not satisfactory, the same shall be replaced at no extra cost to us' which means that the Petitioner is liable to replace the defective product with no extra cost being paid by the Respondent. The terms and conditions of the work order dated 4.11.2011 agreed between the Respondent and Petitioner well in advance and the Petitioner is attempting to implement the work order as per their convenience without rectifying the defects in the pending work whereas all the terms and conditions of the work order has to be read as a whole and not in part including clause 1 of the general terms and conditions of the work order dated 4.11.2011. Despite the receipt of the several reminders from the Respondent the Petitioner preferred this present petition without curing the defects in its w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to resolve the dispute through arbitration mode has preferred this petition before this Hon'ble Tribunal. The present petition has failed to satisfy the minimum amount to initiate the petition before this Tribunal. The present petition has been filed for claim of ₹ 33,68,116.6/-. As per the notification dated 24.03.2020 vide S.O. 1205 (E) to trigger Insolvency and Bankruptcy petition against the Respondent the minimum amount 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 fulfill the criteria of minimum default amount as per Section 4 of the I B Code, 2016. Further, the Petitioner had initially filed the Petition on 09.01.2018 which was dismissed for non-prosecution by this Tribunal on 24.01.2020. The petitioner filed LA No. 421 of 2020 to restore the original company petition and recall order dated 24.01.2020. This Tribunal vide order dated 31.03.2021 admitted I.A. No. 421 of 2020 and restored the same for fresh hearing and listed on 19.04.2021. Therefore, this matter would come within the purview of the said notification 24.03.2020 and the present petition would be barred as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebts? (2) Whether the C.P. is filed within the period of limitation? (3) Whether the Petitioner proved the existence of the debt and the liability to pay the same by the Respondent/Corporate Debtor? (4) Whether there were any pre-existing disputes between the parties in respect of the claimed debts? 13. There is no bar under the IBC from filing a single C.P., so long as the Operational Creditor and the Corporate Debtor are the same and the total claim crosses the minimum threshold limit. In the present case, the claim satisfy the said requirement. Since the instant C.P. filed before enhancement of threshold limit to Rs. One Crore, there is no impediment in entertaining the same. 14(a). Even as per the Respondent/Corporate Debtor, the last invoice with regard to the Project Nitesh Flushing Meadows was issued on 23.03.2015. The instant C.P. was filed on 09.01.2018, i.e. well within the limitation period of three years. Hence the C.P. is within limitation. (b). The other amount claimed is pertaining to 5% retention amount retained by the Respondent. The retention money was liable to be released immediately after expiry of 12 months from the date of raising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, the Respondent has not issued any letter or mail stating that any specific work is incomplete or any work done with regard to the said project, wherein it has pointed out any defect/default which was not attended or rectified. It is also not in dispute that the time limit fixed for the purpose of releasing the retention money also expired. Therefore, it is clear that the Petitioner is able to establish the existence of the debt to the extent of ₹ 4,58,277/- and the interest thereon. 18. Once the maximum period from the date of completion of the project expire, and when there was no specific demand from the Respondent to complete any unfinished work or to repair any defective finished work, subsequent to completion of work, the Respondent is liable to release the retention amount to the Petitioner. Simply mentioning defect in work without specifically linking the same for returning the retention money, cannot be treated as a pre-existing dispute with regard to the retention money. 19. In the circumstances and for the aforesaid reasons and since the C.P. is complete, the same is liable to be admitted. Accordingly, the C.P. is admitted and moratorium is declared in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing Registration No. IBBI/IPA-002/IP-N00059/2017-2018/10111, having registered address at No. 56, 4th Cross, 2nd Sector, Nobonagar, Bannerghatta Road, Bangalore-560076, [email protected], as the Interim Resolution Professional of the Corporate Debtor. The IRP is directed to take the steps as mandated under Sections 15, 17, 18, 20 and 21 of IBC, 2016. 22. The Interim Resolution Professional shall after collation of all the claims received against the Corporate Debtor and the determination of the financial position of the Corporate Debtor, constitute the Committee of Creditors and shall file a report, certifying constitution of the Committee to this Adjudicating Authority on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the CoC within seven days for filing the report of Constitution of the Committee. The Interim Resolution Professional is further directed to send regular progress reports to this Adjudicating Authority every fortnight. 23. A copy of the order shall be communicated to both the parties. The learned Counsel for the Petitioner shall deliver a copy of this order to the Interim Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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