9911796707
TMI Blog2024 (8) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... It was further observed in the aforesaid case that the non-obstante clause in Section 60(5) of the Code is designed for a purpose i.e. to ensure that NCLT alone has the jurisdiction when it comes to applications or proceedings by or against the Corporate Debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings and therefore, NCLT has jurisdiction to adjudicate disputes which arise solely from or which relate to the insolvency of the corporate debtor. If the Applicant is relegated to civil court(s) or arbitral proceedings even in respect of admitted dues, it would definitely defeat the objects of the Code and the objective of concluding the process in a time bound manner would never be possibly adhered to. Even otherwise, in the context of this case, undisputedly, the Corporate Debtor continued to render services to the Respondent despite initiation of CIRP against it and against those services, the Liquidator is seeking to realize the dues. Therefore, it cannot be said by any stretch of imagination that there is no nexus of the dues sought to be recovered or the relief(s) being claimed in the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as due and payable to the Corporate Debtor during reconciliation of accounts, however, the Respondent is illegally withholding even the said admitted amounts on the condition that the Corporate Debtor provides a No-Demand Certificate to the Respondent. iii. In accordance with the terms of the said Contract, the Corporate Debtor raised RA Bills from time to time, out of which 10% was retained by the Respondent from the bill amount. In the meantime, the Corporate Insolvency Resolution Process ( CIRP ) was initiated against the Corporate Debtor by Learned National Company Law Tribunal, Mumbai Bench ( Adjudicating Authority ) vide Order dated 23.03.2018 in Company Petition (IB) No. 1374 of 2017. As the CIRP could not succeed, the Adjudicating Authority passed a liquidation order dated 23.01.2020 in the above-captioned Company Petition against the Corporate Debtor. Despite the initiation of CIRP and Liquidation, the Corporate Debtor duly completed the installation and erection works in January 2020 and work of supply of electrical equipment in July 2020. iv. Despite the completion of work, the Respondent failed to clear the bills raised by the Corporate Debtor towards the completed wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty-Seven Only) as due and payable to the Corporate Debtor by the Respondent towards the retention amount. Further, for making the payment of admitted dues, the Respondent raised a condition from the Corporate Debtor to issue a No Demand Certificate with respect to the remaining dues. Thus, it becomes clear from the email dated 04.06.2022 that despite admitting the due amounts owed by the Respondent to Corporate Debtor, the Respondent is deliberately withholding admitted legitimate dues of the Corporate Debtor by raising frivolous issues. viii. Despite repeated requests and several reminders by the Applicant, the Respondent is illegally and without any cause or dispute is withholding the unpaid dues of the Corporate Debtor. It is further submitted that the process of liquidation is time bound process and if the amounts are not distributed to the other creditors within the requisite period, the liquidation proceedings will fail to reach its logical conclusion. Thus, this Hon'ble Court have requisite jurisdiction under the Code to direct the Respondent to release the monies. Hence this application. 3 . Reply of the Respondent The Respondent has filed his Affidavit-in-Reply dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r terms and conditions of the contract, all contractual obligations are to be fulfilled. However, the Corporate Debtor neither responded to the mail nor extended the validity of the Bank Guarantees. In order to safeguard the interest of the works to be executed and as per the terms of the contract, the Respondent, upon the Corporate Debtor's failure to fulfil the contractual conditions, invoked the Bank Guarantees. Further supplies and works were delayed w.r.t. contractual work schedule and, therefore, as per the contract terms and conditions, Liquidated Damages were imposed. iv. In view of the facts and circumstance of the present case, the Respondent most respectfully prays that the application of the Applicant be rejected. FINDINGS 4. We have heard the learned Counsels for the Applicant and the Respondent. 5. During the course of the arguments, the counsel for the Applicant has argued that the respondent itself has admitted that an amount of INR 12.34 crores is due and payable to the Corporate Debtor. In this regard, the Counsel for the Applicant/Liquidator has referred to the email dated 04.06.2022 (Exhibit I of the Application) and the payment reconciliation statement anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speeding up the insolvency process. It was further observed in the aforesaid case that the non-obstante clause in Section 60(5) of the Code is designed for a purpose i.e. to ensure that NCLT alone has the jurisdiction when it comes to applications or proceedings by or against the Corporate Debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings and therefore, NCLT has jurisdiction to adjudicate disputes which arise solely from or which relate to the insolvency of the corporate debtor. 8. It can also not be disputed that the process of undergoing CIRP or liquidation under the IB Code is a time bound process. Any delay in the process tends to defeat the objects of the Code, as the value of the assets gets eroded with passage of time. Therefore, in our considered view, if the Applicant is relegated to civil court(s) or arbitral proceedings even in respect of admitted dues, it would definitely defeat the objects of the Code and the objective of concluding the process in a time bound manner would never be possibly adhered to. Even otherwise, in the context of this case, undisputedly, the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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