TMI Blog2020 (1) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- 16-1-2020 - Smt. Ina Malhotra, Judicial Member And L.N. Gupta, Technical Member Venkat Rao and Remya Ronald, Advs. for the Petitioner. Sanjay Bhatt, Adv. for the Respondent. JUDGEMENT Shri L. N. Gupta, Member (T) The present petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by M/S. Aurotech Infraprojects, through its Authorized Representative Sh. Hitesh Sharma, who is authorized vide Board Resolution dated 10.06.2019 (for brevity 'Operational Creditor'), with a prayer to initiate the Corporate Insolvency Resolution Process against M/S Garg Heart and Multispecialty Hospital Pvt. Ltd. (for brevity 'Corporate Debtor'). 2. The Corporate Debtor namely, M/S. Garg Heart and Multispecialty Hospital Pvt. Ltd. is a Company incorporated on 06.02.2012 under the provisions of Companies Act, 1956 with CIN No. U85100DL2012PTC231067, having its registered Office at 8, AGCR Enclave, Karkardooma, New Delhi-110092. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following grounds . (a) There is a pre-existing dispute between the Parties in terms of defects in the work pointed out from time to time, cancellation of contract and Email dated 02.02.2019. (b) The Corporate Debtor has not done his work properly within the stipulated time. (c) The Corporate Debtor had terminated the Contract vide its Letter dated 17.01.2019. (d) Work done by the Applicant was unsatisfactorily and not in accordance with the terms of the agreement, which was time and again communicated to the Applicant. Hence, no certificate of completion of work was ever issued to the Applicant. (e) The application lacks specific authorization to initiate CIRP. 9. It is stated by the Corporate Debtor that its Project Management Consultant vide their Reports dated 25.04.2018 and 01.05.2018 has pointed out various deficiencies in the work done by the Operational Creditor under the Agreement. The relevant extract of one such report dated 25.04.2018 is reproduced below : REPORT OF VISIT DATED 25TH APRIL 2018 Dear Sir, With reference to our today's site visit, we have observed few points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id clause, the liability of the Respondent to release the said retention money to the Applicant shall arise only after the completion of the Defect Liability period. It is stated that as per Clause 15 ofthe LOA, the Defect Liability period is 12 months commencing from the certified date of completion of the work. Further, as per Clause 2.7 of the Agreement, the Certificate of Completion of Work shall be issued only when the work under the contract has been substantially completed in accordance with the terms of the Agreement. It is stated that the work done by the Applicant under the Agreement was unsatisfactory and not in accordance with the terms of the Agreement, which was time and again communicated to the Applicant. Hence, no certification of completion of work was ever issued to the Applicant under the Agreement'. 14. It is further submitted by the Corporate Debtor that due to slow progress, poor quality and inordinate delay in completion of work under the contract, the Respondent was compelled to terminate the Contract Agreement dated 31.05.2016 on 17.01.2019 intimating, inter alia, the Petitioner that all their civil works bills are under scrutiny by 3rd party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint- 1. ₹ 20.00 Lacs payment against security- as discuss and agreed upon us, you will get your 30 Lacs security in 3 equal installments in next 3 months. 1 ST 10 Lacs already released to you in last month and next 10 Lacs you will get in the month of Jan 2019 and so on. 2. ₹ 14.00 Lacs against cement is pending since from the last one year - as you know that you have not submitted cement rates during casting and rates and amount is not verified till date so it is under scrutiny and will closed after discussion with you and all board of directors in the month ofJan 2019. We would also like to bring to your kind attention that payment against our submitted bills is also pending. Kindly arrange to release the same ASAP- your submitted RA dated 11-12 Decl 8 AD-HOC 70% amount already paid to you, balance payment you will get in time after final assessment of your submitted Regards Vikash Tyagi 16. On the other hand, the Corporate Debtor has relied upon the Email dated 02.02.2019 to establish the pre-existing dispute between the parties: M/S Aurotech Infraprojects Pvt. Ltd. Udyog Sheela Mahila Sehka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established as per the contract. Regarding release of security, as per the agreement, 12 months defect liability is from the certified date of completion, however, the project is yet not complete. As per our understanding, no certification was ever given as 'work completed' for works up to Jan 2017 or till works done up to last month. Reference to your 12 RA Bill, 70% amount has already been paid. The bill measurement is under verification by third party and balance amount would be paid on confirmation/ recommendation of the same. 4. With reference to the cement consumption payment, please not that we have already conveyed you many a times to submit the details of rate-difference and Cement Consumption for the item number 2.01. May also note that basic rates of cement bag as defined in item 2.01 only would be considered for payment as per the agreement/BOQ. May please submit the details so that payment, if due, can be released. 5. You are requested to submit your final bill (consolidated) for verification so that final amount payable to you may be certified by the third party. Based on the recommendation on your final bill, we would be glad to clo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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