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TMI Blog2022 (7) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... g the application and other material placed before this Bench, the Corporate Debtor issued various work orders and purchase orders to the Operational Creditor during the Financial year 2015-16 and 2016-17 for following purpose: i.) Construction of Building Structures at Sunshine Swapna Nagari, Chamtoli, Tal. Ambernath consisting of 10 individual building structures of ground and four upper floors, terrace, Lift machine room and water tanks. ii.) Supply of Gabion Box Cages. iii.) RCC, masonry, plastering and other civil works including Sales Pavilion and also for labour supply at sunshine Swapna Nagari, Chamtoli, Tal. Ambernath. iv.) Construction of Jack Well, Pump House and Intake Chamber for project "Sunshine Swapna Nagari", At- Chamtoli, Badlapur-East. mentered into a service agreement dated 01.01.2014. The Operational Creditor submits that various tests including concrete cube test, sand test, brick test were carried out at the time of work execution and the reports of the following were submitted to the Project In-Charge along with a set of checklist of work to be executed at the site. The same was approved by the Project in-charge by signing on it. After execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Floor height of 2900 mm from ground floor to first floor is found 50 mm to 100 mm less at various locations. vii) Concrete performance is very poor, beam, column and slabs is porous, honeycomb and bulge concrete at various locations resulting leakages in floor slab and toilet sunken areas. This has resulted in falling of ceiling gypsum at many place at site. viii) Room dimensions are not matching with the dimensions given in the drawings. ix) External plaster thickness is found up to 60 mm in place of average thickness of 20 mm. Due to this External plaster started generating the cracks on surface and it will be the major cause of leakages through external walls of the buildings. x) At many places, internal plaster thickness is found 30 mm to 40 mm instead of 12-15 mm average thickness. The Corporate Debtor further referred the work contract and has mentioned that the operational creditor was duty bound to complete the work within 10 months from the date of issue of the work order i.e. 15th September, 2015 but the operational creditor failed to do so and now is liable to pay Rs. 25,000/- per day as penalty. 4. The Corporate Debtor in its written arguments has tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights arising out of contracts are 'proceedings' barred under Section 69(3) of the Partnership Act. The Corporate Debtor has also submitted that it is a preexisting dispute and the present application has been filed for extraneous considerations and/or to substitute ordinary debt enforcement measures. The contention of the dispute has already been mentioned in para 3. Moreover, the Corporate debtor has submitted that the disputes were raised by the Respondent in a meeting held on 11.11.2017, which was prior to the issuance of Demand Notice. 5. In response to this, the Operational Creditor has also filed rejoinder to reply of the Corporate Debtor and denied all the contentions raised in reply and further submitted that Section 69(2) of the Partnership Act specifically bars the "suit to enforce a right arising from a contract" and the petition filed herein is not a suit enforcing any right arising from a contract. Further submitted that it is well settled legal principle that the petition for winding up filed by the unregistered firm cannot be construed to be a "suit" within the meaning of Section 69(2) of the Partnership Act and moreover, unregistered partnership firm falls unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm is registered and the person suing are or have been shown in the Register of firm as partners in the firm. (3) The provisions of sub section (1) and (2) shall apply also to a claim of Set - off or other proceeding to enforce a right arising from a contract, but shall not affect - a) The enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm or b) The powers of an official assignee, receiver of Court under the Presidency, Towns Insolvency Act 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner. In relation to Section 69(2), the issue has been decided by one of the NCLT Bench in the matter of Shree Dev Chemicals Corporation Vs. Gammon India Limited in CP (IB) No.3637/MB/2018 dated 16.07.2020, wherein the following is held: "10. Section 69(2) of the Indian Partnership Act, 1932, reads as follows: "No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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