TMI Blog2019 (2) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 29-8-2018 - B. S. V. Prakash Kumar Judicial Member And Ravikumar Duraisamy Technical Member For the Petitioner : Shyam Kapadia and Durgaprasad Poojari instructed by PDS Legal For the Respondent : Gaurav Joshi , Senior Counsel with Ashish Kamath , Murtuza Federal and Ms. Anuja Abhyankar , instructed by M/s. Federal and Rashmikant ORDER B. S. V. PRAKASH KUMAR (JUDICIAL MEMBER).- 1. It is a company petition filed by the operational creditor namely ; Gammon India Ltd., against the corporate debtor under sections 433(e) and (f) and 434 of the Companies Act, 1956 for winding up of this company on the ground that this corporate debtor defaulted in making repayment of ₹ 54,86,09,635 with interest at 15 per cent. per annum as on August 15, 2016 till its realisation. 2. Since winding up jurisdiction, owing to the arrival of the Insolvency and Bankruptcy Code, 2016, has been transferred from the hon'ble High Court of Bombay to the National Company Law Tribunal, Mumbai, this matter has also been transferred from the hon'ble High Court of Bombay to this Bench, accordingly, this petitioner along with the transferred company petition filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with section 434 of the Companies Act, on September 27, 2016 this case being transferred to this Bench, we have taken up this matter for hearing. 6. Against this background, the corporate debtor has placed the dates of events disclosing that this petitioner on May 29, 2014 called upon this corporate debtor as well as other partners (Treetop and NRPL) to pay an amount of ₹ 30 crores with compounding interest, upon which, this corporate debtor on June 23, 2014 replied denying the claim mentioned in the notice dated May 29, 2014 referring to the discussion in the joint meeting held on June 13, 2014 where Mr. Abhijit Rajan (promoter of the petitioner) as a representative of the Treetop (belonging to the petitioner) and the petitioner side had agreed to withdraw the said letter dated May 29, 2014 thereafter when they again sent a letter on August 8, 2014 requesting the debtor side to refrain from making incorrect statements, the corporate debtor replied to the same on August 28, 2014 disputing the claim as well as requesting the petitioner side to discontinue sending further correspondence. But whereas, the petitioner, despite the corporate debtor side requested not to make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has inflated bills ; (vii) The petitioner abandoned the site in January, 2013 ; (viii) The petitioner has taken payments exceeding ₹ 86 crores despite balance work pending and the estimate for it was only ₹ 41.49 crores. Soon after receipt of the reply to the notice, the petitioner filed the winding up petition as mentioned above. 11. On hearing both sides, now the point for consideration is as to whether this petition is maintainable as stated by the petitioner's counsel or not. 12. On perusal of the facts of the case, it appears that this work agreement has entered into between this petitioner and the partnership firm floated by the associate company of the petitioners, this corporate debtor and another partner. Now this petitioner has filed this company petition against this corporate debtor, which is one of the partners of that partnership firm. 13. If you read the Insolvency and Bankruptcy Code, it is apparent that this Code has been divided into two parts ; one part is to be dealt with by this Adjudicating Authority, i.e., the National Company Law Tribunal and another part is to be dealt with by the Debts Recovery Tribunal. In the cases wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he partners in a firm are jointly liable . . . 95. (1) A creditor may apply either by himself, or jointly with other creditors, or through a resolution professional to the Adjudicating Authority . . . (2) A creditor may apply in relation to any partnership debt owed to him for initiating an insolvency resolution process against- (i) any one or more partners of the firm ; or (ii) the firm. (3) Where an application has been made against one partner in a firm, . . . Adjudicating Authority may give such directions for con solidating the proceedings under the applications as it thinks just . . . 179. (1) Subject to the provisions of section 60, the Adjudicating Authority, in relation to insolvency matters of individuals and firms shall be the Debts Recovery Tribunal having territorial jurisdiction over the place . . . (2) The Debts Recovery Tribunal shall . . . entertain or dispose of- (a) any suit or proceeding by or against the individual debtor ; (b) any claim made by or against the individual debtor ; (c) any question of priorities or any other question whether of law or facts, arising out of or in relation to insolvency and bankruptcy of the individual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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