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2022 (6) TMI 210 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - privity of contract - forum shopping - HELD THAT:- Undisputedly, the contract was given by NBCC to M/s. ERA Infra Engineering Limited and there was no agreement executed between the Applicant and the Respondent herein. No such agreement has been placed on record, whereby ERA Infra Engineering Limited might have been authorised to engage the sub-contractor and for that purpose the Respondent can be held liable and vice-versa. From the record, it is not proved on the record that there was any privity of contract between the applicant and the Respondent herein except to the extent that one letter, which has been written by the Respondent to the M/s. ERA Infra Engineering Limited, that too was only with request to 'due payment' if any of M/s. ERA Infra Engineering Limited. Further, on 08.05.2018 M/s. ERA Infra Engineering Limited had undergone CIR proceedings therefore, any amount lying even if any with the Respondent qua the contract with M/s. ERA Infra Engineering Limited that cannot be made payable to the Applicant herein due to 'Moratorium'. Apart that, there is a serious dispute qua the amount also, as the balance sheets of M/s. ERA Infra Engineering Limited is showing a sum of Rs. 51,79,028 due, whereas the Applicant has been claiming a sum of Rs. 7,10,07,021/-. Moreover, the Applicant has already availed the remedy before the Hon'ble High Court, Delhi by virtue of filing a writ petition 12427/2021, which was filed on 28.10.2021 against the respondent, whereas the demand notice was issued on 26.11.2021. The applicant also filed claim before Ld. R.P. of M/s. ERA Infra Engineering Limited, which was also rejected. Therefore, even otherwise, there is a preexisting dispute - Apart that the applicant is indulged in forum shopping. This Tribunal is also affirm view that there is a serious dispute about the 'due payment', which cannot be decided in a summary manner and requires a detailed enquiry - Application rejected.
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