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2020 (9) TMI 377 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - Time Limitation - HELD THAT:- Various documents on record itself show that the defence of Respondent on this count with regard to who is the employer requires a tripartite adjudication, is not baseless. We have perused Annexure – A-4 (Page – 88). It is titled Contract Agreement dated 19th March, 2008. The index (Annexure – A-4) claims that the Agreement is only of three pages (Pages – 80 – 82). Clearly, there are other documents. The Appeal has referred to only these pages from the Agreement, as the Contract. At Page – 80, in the beginning of the Agreement, the title is “The employer and the Contractor agree as follows:-” Then Serial No.1 states that “In this Agreement words and expression shall have the same meanings as are respectively assigned to them in the Conditions of Contract hereinafter referred to”. When definition clause says particular thing, for purpose of interpretation, we would ignore the initial portion of Annexure – A-4, where the Respondent - Nitesh Estates Limited is called the “employer”. It is apparent that the document itself says that the employer would be as stated in the conditions of contract and document at Page – 128 says that the employer is NRHPL. We have looked into this as learned Counsel for Appellant wanted us to lift the corporate veil and see. The Respondent is right in saying that it requires tripartite adjudication, considering different documents and conduct of parties. Time Limitation - HELD THAT:- Appellant claims that project was completed in 2012 and the hotel was taken over in 2013. Take Over Certificate is stated to be dated 07.04.2014 The Application under Section 9 filed on 22.12.2017 would thus be clearly time barred with regard to the debt claimed. If the project was completed in 2012, the amounts payable must be said to have become due. When the works are completed and the hotel is also taken over and made functional, the time had begun to run. Whether or not this or that formality was completed would not stop the running of time. Pre-existing dispute or not - HELD THAT:- The Respondent has pointed out an e-mail dated 21.01.2016 (Annexure - E – Page 58 of the Reply) which shows that the Chief Engineer of Ritz Carlton Hotel had sent communication to the Appellant with regard to the various leakages and seepages found in various rooms and the damage caused to upholstery, paint, furniture, etc. Various room numbers are pointed out which required various treatments. This document clearly shows that the quality of work done was disputed and the dispute was raised in 2016 itself and Appellant was informed that in spite of continuously following up, there was no response. It is quite apparent that there was pre-existing real dispute regarding the quality of work done. When this is so, the Adjudicating Authority is not required to go into further details and we find that the Application under Section 9 was rightly rejected by the Adjudicating Authority. Appeal dismissed.
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