9911796707
TMI Blog2024 (9) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... in (RCP) IB-1/ND/2024. The Appellant had filed an Application under the provisions of Section 9 of Insolvency and Bankruptcy Code (IBC), 2016, against the Respondent for initiation of insolvency resolution process against the Corporate Debtor for the non-payment of dues arising from supply of manpower services. 3. During the pendency of the said Application, the CIRP against the Corporate Debtor stood commenced in some other proceedings due to which the Application of the Appellant, then numbered as CP IB No. 531/ND/2020 was disposed of by the Adjudicating Authority vide order dated 13.02.2021, with a liberty to file a claim with Resolution Professional on the grounds that the insolvency resolution process against the Respondent was already initiated in another matter i.e. Vistra (ITCL) India Private Limited versus Ambience Private Limited being CP No. IB 1600/ND/2018 vide order dated 21.12.2020. 4. The said Order dated 21.12.2020 was challenged before this Appellate Authority in Company Appeal (Insolvency) No. 06/2021 by the Respondent and vide Order dated 02.08.2022, inter alia, this Appellate Tribunal had set aside the Order of Adjudicating Authority Order dated 21.12.2020. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the agreement, arrangements between the parties were going on verbally. 10. In terms of the said agreement, the Appellant was to provide the security services to the Corporate Debtor at its site located at Ambience Triverton, Sector 50 Noida, which was then under construction. It is common ground that the said agreement expired on 30.04.2018 and was never renewed. The parties continued to be engaged together and the Appellant provided the manpower services which were demanded by the Corporate Debtor. As per the terms of the invoices, the credit period for payments was 30 days. 11. That on failure on the part of Respondent to pay an outstanding of Rs. 89 lakhs approx., the Appellant approached the Hon'ble NCLT, Delhi by filing a Petition under Section 9 of the IBC. The Hon'ble NCLT, Delhi dismissed the Petition filed by the Appellant vide Impugned Order dated 05.03.2024. 12. The Adjudicating Authority vide Order dated 05.03.2024 has erroneously dismissed the Application filed by the Appellant on the grounds that there is a pre-existing dispute between the parties, which was raised by the Corporate Debtor prior to the issuance of demand notice under the provisions of Section 8 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. 16. While dealing with the third email of 30.07.2019, the Adjudicating Authority has committed an error. The Appellant actually left the site of the Corporate Debtor in or around September 2019, which is evident from the email of 24.09.2019, 25.09.2019, 26.09.2019 and 27.09.2019 which, inter alia, provides that actually the Appellant was constrained to withdraw the services due to pending dues of Rs. 81 lakhs approx., as of September 2019 which even after repeated requests stood unpaid. 17. With respect to the fourth email which is reiterated under the Impugned Order with the date mentioned as 02.01.2020. Appellant contends that the said mentioned date is incorrect. This email was sent by the Corporate Debtor to the Appellant on 26.05.2019. And as on the said date also, the dues of the Appellant which remained unpaid were Rs. 79 lakhs approx. 18. Appellant contends that the issue qua the deployment of number of manpower is totally based on oral discussion between the parties. Accordingly, the email qua the shortage of manpower was only a request from the Respondent for increase of manpower. Further, it is pertinent to mention that the Operational Creditor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide security services. Relying upon the said representations and assurances, Respondent Company agreed to engage Applicant's services at its under- construction housing project site i.e. Ambience Tiverton, Sector-50, Noida, Uttar Pradesh. The security at Respondent's site was a big responsibility and the best security had to be provided to take care of materials lying at the site such as bricks, cement, concrete, sand, steel, scaffolding, stone, tiles, mud, wood, glass, plastic, and several other construction tolls and equipment (concrete mixtures, cranes, rollers etc.). The Applicant had to provide adequate number of trained security guards, gunmen and supervisors without any lapse as the security and goodwill of the Respondent depended upon it. However, it turned out to be a false premise used by the Applicant to get the security service contract. 22. Believing the representation and assurances made by the Applicant, the Respondent awarded the agreement for providing the security services dated 01.05.2017 to the Respondent. Under the said security service agreement, the Applicant had agreed that it shall provide the staff with the following strength (i) Security G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shifts and the Applicant was requested to bring up the deficiency and however, the problem was not resolved by the Applicant. 24. The complaints of shortage of manpower was again pointed out vide email dated 26.05.2019 by the Respondent to the Applicant/Appellant. It was again pointed out that there are only 12 number of security guards during day time and only 7 in night shifts and due to which it has become difficult to run the site. Due to negligent attitude and security lapse of the Applicant and its staff, the Respondent's site was completely exposed to loss, destruction, damage, waste and even incidents of theft and pilferage occurred. Through email dated 25.08.2019, it was pointed out that there is daily shortage of manpower and the repeated remarks have been made in the manpower register. Despite above all, the Applicant deliberately abandoned and withdrew its security without giving prior notice for which an email dated 25.09.2019 was also sent. The efficiency and performance of manpower provided by Applicant/Appellant was not as per the said service agreement and the number of manpower provided was also short of the desired numbers. Regarding the deficiency in serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lse information and has filed false affidavit and statement on oath. The Operational Creditor has deliberately furnished false information about the payments of invoices/bills (serial no. 2-23) which has already been made by the Corporate Debtor and whereas the Operational Creditor has claimed them to be outstanding/due. Apart from this, there is a dispute about the enforceability of the contract between the parties and the alleged amount is not admitted by the Corporate Debtor. The dispute raised by the Corporate Debtor is bonafide and fall within the meaning of 'dispute' under Sub-Section 6 of Section 5 of the IB Code. Therefore, the Hon'ble Tribunal should reject the above mentioned Application. 27. That the Application under reply is not maintainable under Section 9 of IBC, 2016. The Operational Creditor has not filed any certificate from the financial institution maintaining accounts of the Operational Creditor certifying that there is no payment of unpaid operational debt by the Corporate Debtor. The Operational Creditor has not come before this Hon'ble Tribunal with clean hands and has not filed its true statement of account and/or ledger. There was no valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Authority has relied on multiple emails exchanged between the parties, prior to the issuance of the demand notice, which indicated that the Respondent had raised concerns about the Appellant's performance and the adequacy of manpower services. 32. The Appellant contended that the Adjudicating Authority had erroneously relied on emails that did not pertain to the specific services or invoices in dispute. The Appellant argued that the emails referred to issues at a different site and that the alleged theft and security issues had been resolved by September 2019. Furthermore, the Appellant claimed that the Respondent's failure to make timely payments led to the withdrawal of its services, and that there were no disputes regarding the specific invoices raised for the services provided. 33. The Appellant also submitted that the Respondent's contentions of service deficiencies were raised only after significant amounts had become due and were merely a tactic to avoid payment. 34. The Respondent argued that the deficiencies in the Appellant's services were well-documented and communicated before the issuance of the demand notice. The Respondent highlighted several instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he site. Hence, Ambience would be entitled to issue debit note to recover its losses caused by the theft. b) Email dated 18.12.2018 at 03:16 PM from Armour Security to Ambience [Appeal/ pg. 173) Armour Security acknowledged in writing that there was lack of security guards deployed by them despite request to increase manpower. Armour Security further acknowledged that there were thefts from the site, and that police complaints have been filed. Armour Security requested for payments to be released, which were accordingly complied with. However, Armour Security failed to recover any money or material against the theft at the site in view of lack of security. c) Email dated 22.05.2019 at 01:33 PM from Ambience to Armour Security (Appeal/ pg. 278): Despite several reminders in the past there was lack of security guards at the site and therefore, Armour Security was put on notice that the requisite number of security personnel were not present at the site. There were only 12 presents during the day and only 8 at night. That there were manpower problems at Armour Security which requires immediate action. d) Email dated 26.05.2019 at 12:06 PM from Ambience to Amour Security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant." "All the e-mails mentioned above were sent prior to the issuance of demand notice u/s 8(1) of the Code dated 14.01.2020 by the Operational Creditor. Considering the facts and circumstances as reflected from the record, we are of the considered opinion, that the dispute existed between the Operational Creditor and the Corporate Debtor prior to issue of the demand notice u/s 8(1). Hence, we hold that there is a pre-existing dispute pending in between the Operational Creditor and the Corporate Debtor." 42. We find that the main ground basis which the Appeal cannot be accepted is existence of pre-existing dispute, which is noted in series of email exchange of emails. In such situations of pre-existing disputes, Hon'ble Supreme Court in Mobilox Innovation Pvt. Ltd. Vs. Kirusa Software Private Limited (2018) 1 SCC 353, at para 40 had held as under: ".. 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
