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TMI Blog2020 (2) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... hawla, Director of the operational creditor. Board Resolution dated 05.02.2018 giving authority to him is at Annexure A-12 of the petition. The affidavit of Sh. Chandanpal Singh Chawla, Director of the operational creditor verifying the contents of the application is at page 36 of the petition. 2. It is stated that the operational creditor was awarded a work order dated 19.08.2011 by the corporate debtor for civil work of construction of Ginger Hotel at Plot No.15, Industrial Area, Phase-I, Chandigarh. As per the work order 5% of the amount in running bill (R.A bill) was to be retained by the corporate debtor, called as retention money. The Operational Creditor issued 18 R.A. bills and as per the final RA Bill No.18, the total amount of retention money to be paid by the corporate debtor to the operational creditor was Rs. 24,74,085/-. In Part 4 of Form 5 the total amount claimed in default is stated to be Rs. 24,74,085 along with Rs. 12,98,894/- being 18% interest calculated up to 01.03.2018. The debt is stated to be fell due from 21.07.2015. 3. A demand notice in Form No. 3 is stated to be issued on 01.03.2018 (Annexure A-9 of the petition). The demand notice was accompanied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of clause 6.29 of the contract. It is also submitted that no affidavit in accordance with section 9(3) of the Code has been filed by the applicant operational creditor since the affidavit filed along with the petition does not contain any assertion whatsoever to the effect that no notice given by the corporate debtor relating to, a dispute of the unpaid operational debt. It is stated that the operational creditor is not entitled to release of the retention money under contract, the claim of the operational creditor is barred by law; as per Clause 8.2 of the contract, no interest is payable to the contractor on the retention money; the corporate debtor is solvent, going concern with assets worth Rs. 33.72 crores as per last Balance Sheet. 8. In response to the reply filed by the respondent corporate debtor, the authorised representative of the Petitioner filed rejoinder dated 16.05.2019 (Diary No. 2522 dated 17.05.2019) stating therein that the assertion of the respondent that the defects during the DLP from 31.03.2014 till 01.04.2015 were not cured is false because on collective perusal of e-mail dated 14.07.2015. 21.07.2015 and 27.07.2015 exchanged between the petitioner and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion cannot be accepted. 13. Learned counsel for the corporate debtor has pleaded that as per the work order, the defect liability certificate was to be requested by the operational creditor but no such request was made and therefore, the defect liability period cannot be said to have expired. 14. We find that in the virtual completion certificate issued by the corporate debtor on 04.03.2014 (Annexure A-3 of the petition), it is stated that the work is certified to be virtually completed on 31.03.2014 subject to rectification of defects, as pointed out by engineering/operations department. It was further stated as under:- The defect liability period for the subject work shall commence on March 31st, 2014 and will cover the entire period of One Year up to April 1st, 2015. We will retain 5% of the final contract value ''as retention amount in your final bill and will release the same at the end of the defects liability period or on the submission of a Performance bank guarantee for the same which has to be valid for the defect liability period. 15. Para 6.29 of the terms and conditions (Annexure A-2 of the petition) is as follows:- 6.29 DEFECTS LIABILITY PERIOD 6.29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all concerns have been attended to and rectified as and when required. The e-mail dated 13.07.2015 at page 137 of the petition from the Hotel Manager, Ginger Chandigarh is for redoing the slope in -1 parking first basement and regarding this work, in the e-mail dated 21.07.2015 (supra) it is requested to "ask someone from your office to attend this issue as a Special case request, which shall be of great help." Therefore, the work in -1 parking first basement was requested to be done by the corporate debtor as a special case, thereby implying that the defect liability period was over on 31.03.2015. 18. In view of the above discussion, the plea of the corporate debtor that the defect liability period cannot be said to have expired is not accepted. 19. The learned counsel for the corporate debtor has pleaded that in view of the e-mails to the operational creditor as per Annexure R - 1 (colly) of the reply, the defects have not been removed and therefore, there is a pre-existing dispute. As regarding the e-mails up to 24.03.2015, the successful rectification of such defects is available in the e-mail dated 21.07.2015 (supra) in which all concerns are stated to be attended and rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in respect of water accumulation in -1 parking on site, the redoing of slope was as a "Special case request." 21. The learned counsel for the corporate debtor has pleaded that the claim of interest @ 18% per annum on the alleged retention money due is not justified in view of Clause 8.1.2. of the contract, which specifically states that no interest is payable to the contractor on the retention money. Clause 8.1.2 of the contract has reference to payment of interest to the contractor on the amount retained in cash towards retention money. On completion of the defect liability period, the retention money became due to the corporate debtor on 01.04.2015. The claim of interest of Rs. 12,98,894 in the application is for the period from 01.04.2015 to 01.03.2018 i.e. after the defect liability period had ended. Therefore, Clause 8.1.2 of the contract would not have application. 22. The learned counsel for the corporate debtor has pleaded that the corporate debtor is solvent, going concern with assets worth Rs. 33.72 crores as per the last Balance Sheet and it is trite law that no insolvency proceedings ought to be commenced against the company which is a going concern. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m No.5. 27. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, we admit the petition for initiation of the CIRP process in the case of the Corporate Debtor M/s. Hind Inns & Hotels Limited and direct moratorium and appointment of Interim Resolution Professional as below. 28. We declare the Moratorium in terms of sub-section (1) of Section 14 of the Code as under:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor Including, execution of any judgment, decree or order in an court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 29. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2019. We select Ms. Mandeep Gujral appearing at Serial No.11 of the panel to be appointed as Interim Resolution Professional 33. The Law Research Associate of this Tribunal has checked the credentials of Ms. Mandeep Gujral and there is nothing adverse against her. 34. In view of the above, we appoint Ms. Mandeep Gujral, IP Registration No. IBBI/IPA-001/IP-P00507/2017-18/10908, e-mail Id: [email protected], Mobile No. 9814228288 as the Interim Resolution Professional, with the following directions:- (i) The term of appointment of Ms. Mandeep Gujral shall be in accordance with the provisions of Section 16(5) of the Code; (ii) In terms of Section 17 of the Code, from the date of this appointment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the Corporate Debtor shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the interim Resolution Professional under Section 18 and other relev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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