9911796707
TMI Blog2022 (7) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... e issuance of Demand Notice and the nature of dispute raised by the Corporate Debtor seems to be genuine. This Bench hereby holds that dispute is in existence between them as on the date of receipt of Section 8 notice by the Corporate Debtor. Petition dismissed. - C. P. (IB)-46(MB)/2018 - - - Dated:- 8-7-2022 - Hon ble Member (Judicial) : Justice P.N. Deshmukh (Retd.) And Hon ble Member (Technical) : Shri Shyam Babu Gautam For the Operational Creditor : Mr. Rohit Gupta, Counsel For the Corporate Debtor : Mr. Rohan Kama, Counsel ORDER Per- Justice P.N. Deshmukh (Retd.), Member Judicial 1. The Present Application is filed under section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity IBC, 2016 ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) by Vyankatesh Construction an unregistered partnership firm (for brevity Operational Creditor ) for initiating Insolvency Resolution Process (CIRP) against Orchid Housing Infra LLP (for brevity Corporate Debtor ) for default in repaying Principal amount of ₹1,48,13,754 together with interest of ₹3,55,876, aggregat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned certain deficiencies in the quality and nature of work carried out by the Operational Creditor. The Corporate Debtor has mentioned the following shortcomings: i) At many places, soling is not provided below plinth PCC. Direct grid slab PCC done, also thickness of PCC is less than required i.e. average thickness is 30 mm to 60 mm instead of 100 mm required as per drawing and work specifications. This has resulted in settlement of PCC at plinth level at bldgs. ii) Floor slabs casted are not in level and the level difference is up to 60 mm. Due to this finish floor level will be raised by 60 mm which will result into increase the Flooring Work cost. iii) At many places, Columns are eccentric by 20 to 30 mm and beams are not in plumb up to 50 mm. Because of this room dimensions are varying from actual required dimensions as per drawings. iv) Al many places, Toilet Beams casted are of 700 mm depth instead of required Beams depth of 380 mm as per drawing. Due to this it is not possible to provide a full loft as per the drawing. v) At many places, Beam Widths in toilet areas are casted of 230 mm instead of 150 mm as per drawings. This projection of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the genesis of the application was to enforce an arbitration clause, i.e. a right arising out of a contract and the Hon ble Supreme Court further held that; 9. In our judgement, the word other proceeding in sub-section (3) must receive their full meaning untrammeled by the words a claim of set-off . The sub-section provides for the application of the provisions of sub-sections (1) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-section (3) and subsection (4). On relying upon the judgement of Hon ble Supreme Court, the Corporate Debtor has submitted that any other proceeding to enforce a right arising out of a contract and/or whose genesis is founded on a contract is barred at the instance of an unregistered partnership firm under Section 69(3) of the Partnership Act and moreover, applicant himself cited 1.) Work Orders 2.) Purchase Orders 3.) Invoices in Part V, column 6 of the application Form. Thus, according to the applicant s own pleadings, the genesis of his claim and right arise under contract and wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor of Rs. 25,000/- on delay of work, the Operational Creditor submits that the work was not completed with the time schedule due to payments issue, water shortage issues at site, frequent changes in the drawings etc. on the part of the corporate debtor. 6. Heard the submissions made by the Learned Counsels for the both sides. Now the issues before this bench are; a.) Whether an unregistered partnership firm can file for CIRP against a Corporate Debtor? And b.) Whether there is any pre-existing dispute in the present case? 7. In relation to the issue whether an application filed by an unregistered partnership firm is maintainable or not? Firstly, we are incorporating the Section 69 of the Partnership Act,1932, which is as follows: 69. Effect of non-registration (1) No suit to enforce a right arising from a contract of or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of firms as a partner in the firm. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is not the mere ban that is imposed in Sub-sections (1) and (2) that alone is contemplated for the application of Sub-section (3). In other words, when the whole of the ingredients contained in Sub-sections (1) and (2) are wholly incorporated in Sub-section (3), the resultant position would be that the ban can operate in respect of an unregistered firm even relating to a set off or other proceedings only when such claim of set off or other proceedings are intrinsically connected with the suit that is pending in a Court. To put it differently, in order to invoke Sub-section (3) of Section 69 and for the ban to operate either the firm should be an unregistered one or the person who wants to sue should be a partner of an unregistered firm, that its/his endeavour should be to file a suit in a Court, in which event even if it pertains to a claim of set off or in respect of 'other proceedings' connected with any right arising from a contract or conferred by the Partnership Act which is sought to be enforced through a Court by way of a suit then and then alone the said Sub-section can operate to its full extent. In view of this Judgement of Hon ble Supreme Court, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
