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TMI Blog2018 (8) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies Act, 1956 on September 30, 2016 but subsequently after enactment of the Insolvency and Bankruptcy Code, 2016, this petition has been transferred to this Bench and thereafter the operational creditor has furnished Form 5 under rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter as the Rules) in the capacity of "operational creditor" on June 30, 2017 by invoking the provisions of section 9 of the Insolvency and Bankruptcy Code (hereinafter as the Code). 2. In the requisite form, under the head "particulars of corporate debtor" the description of the debtor is stated as, "M/s. Pride Hotel P. Ltd." (hereinafter as debtor) having registered address at A-908, Dalamal Tower, Nariman Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 13,45,603 (which includes the outstanding bill amount of Rs. 6,09,113 of the sub-contractors and Rs. 6,79,370 of the operational creditor) is claimed by the operational creditor hence issued a statutory notice under section 433(e) and thereafter filed a petition for winding up as per the provisions of the Companies Act before the hon'ble Bombay High Court. 9. Pursuant to enactment of the Code, the petition has been transferred to this Bench and thereafter the operational creditor has filed Form 5 as per the provisions of the Code and also issued a demand notice under section 8 of the Code. Submissions by the operational creditor 10. The learned advocate for the operational creditor has submitted that pursuant to the issued work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, since the outstanding amount is not paid and the debtor is merely denying the debt this petition/application may be admitted for the commencement of CIRP. Submissions by the debtor 17. The learned advocate for the debtor has stated that, after receipt of the notice under section 433(e) of the Companies Act, 1956 the debtor has immediately replied on December 21, 2015 to the said notice. The "dispute" was raised then and there vide paragraph 8 which is worth to reproduce as under : "8. My client submits that your client have not fulfil the term and condition as agreed upon therefore my client is not liable to pay of Rs. 13,45,603 (rupees thirteen lakhs forty-five thousand six hundred and three only) including interest at the rate 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal creditor. 20. It is further submitted that, in the said mail the debtor had specifically mentioned that the essence of contract was not maintained by the operational creditor and the work has not been done properly. 21. It is further stated that, in this petition/application the operational creditor has claimed an amount of Rs. 6,09,113 which is supposed to be claimed by two sub-contractors and the operational creditor is not party to those contracts/work orders. It is further stated that, though the said amount has been claimed by the operational creditor there is nothing in support of the claimed amount which is payable to the sub-contractors. 22. It is finally argued that, despite the debtor has questioned the quality of work, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... works over by this external agency engaged by us then after we will inform you the actual cost incurred in this and reconcile in totality. Please refer to our earlier mail indicating that we already paid on your instruction against materials and labour charges to your com pany and your authorised contractor on your instructions around Rs. 1.10 crores. Therefore we once again requesting you to refund the same since all the areas which you have treated are having severe water leakage due to your defective works." 24. Further on perusal of the record it is noticed that the operational creditor has not produced the copy of work orders pursuant to which the sub-contractors, viz., M/s. Savitri Infrabuild P. Ltd., and M/s. Siddhi Infrastructure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s otherwise complete, the adjudicating authority must reject the application under section 9(5)(ii)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the 'existence' of a dis pute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adju dicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the 'dispute' is not a patently feeble legal argument or an assertion of fact unsup ported by evidence. It is important to sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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