TMI Blog2020 (5) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In the present case, there is no such dispute as pre-existing, the dispute which was being claimed to be pre-existing by the corporate debtor did not survive - The applicant has attached the copy of Bank statements in compliance of the requirement of Section 9(3)(c) of the IBC, 2016. The present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted - Application admitted - moratorium declared. - Company Petition IB No. 615/ND/2018 - - - Dated:- 25-2-2020 - Dr. Deepti Mukesh, Judicial Member And Hemant Kumar Sarangi, Technical Member For the Applicant : Lalit Mohan and Nakul Mohta, Advs. For the Respondent : Vipul Ganda, Adv. ORDER HEMANT KUMAR SARANGI, TECHNICAL MEMBER 1. The present application is filed under section 9 of 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46,395/- on the Respondent, whereas total payment received by Operational Creditor is only ₹ 6,14,15,261/- and total deductions made by the Respondent towards TDS is ₹ 34,30,427/-. 6. The Applicant further states that, it has not yet received balance outstanding payment of ₹ 4,61,00,707/- (without interest), the said outstanding amount is an Operational Debt due and payable by Corporate Debtor to the Operational Creditor for the services rendered by the later to the former. 7. In spite of various requests made and reminders sent by the Applicant, the Respondent did not reply. On failure to pay the outstanding dues by the Respondent, the Applicant sent a demand notice dated 22-3-2018, under section 8 of the Insolvency and Bankruptcy Code, 2016 to the Respondent asking them to make the entire payment of unpaid debt to the tune of ₹ 4,61,00,707/- (Rupees Four Crore Sixty One Lakhs Seven Hundred Seven), within 10 days from receipt of the notice, failing which the Applicant shall initiate the Corporate Insolvency Resolution process against the Respondent. 8. The Applicant has sent the demand notice through email to the Respondent, the Applicant has annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Works Contract, the Applicant was required to provide the running bills to the Respondent (along with the measurement bills) in relation to the work carried out by it, which were subject to verification (clause 58 of the Civil Works Contract). The said process of submission and verification was not complied with by the Applicant. In absence of the prescribed verification/confirmation of the work, the entire amount per se was not payable. Accordingly, it would not constitute a debt, let alone an operational debt. 14. Additionally, the Applicant on completion of the entire works contract, was required to provide notice to the Respondent of completion of work (clause 61 of the Civil Works Contract). The Applicant did not provide any notice of completion of the works under the Works Contract. In terms of the Works Contract, the Project would be deemed to have been completed only on issuance of a certificate in writing by the project-in charge (clause 61 of the Civil Works Contract). It is submitted that no such certificate has been issued by the project-in-charge certifying that the Project has been completed. 15. The Respondent further states that, as per clause 57(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. It is submitted that only the last R.A. bill are uncertified and that too because the Respondent did not wish to acknowledge its liability, even though the project incharge did not issue completion certificate the Respondent is still liable for making payments against the R.A. bills. The payment against the R.A. bills was not contingent upon completion certificate. Moreover, the completion certificate could not be issued because of the Respondent's default in meeting the payment obligations. The Respondent cannot take advantage of its own fault to refute its liability towards the Applicant. 19. It is submitted that, there is not a single contemporaneous document to show that the Applicant was deficient in performance of its work or left the work incomplete. The bills of third parties filed by Respondent are denied. These are doctored documents created to show a false claim. It is submitted that except for Four R.A. bills remaining all have been verified and are due and payable. The R.A. bills that are not verified are also due and payable because it was submitted to the Respondent well in time and the Respondent has not raised any objection thereon. 20. The Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted. 26. The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 27. The Applicant has not proposed the name of any Interim Resolution Professional. In view of the same, this Bench appoints the Mr. Vinod Kumar Chaurasia, having registration no. IBBI/IPA-001/IP-P00100/2017-2018/10200, email address is cavinodchaurasia@gmail.com, as the IRP of the Respondent. The IRP is directed to take all such steps as are required under the statute, more specifically in terms of sections 15,17,18,20 and 21 of the Code. 28. We direct the Operational Creditor to deposit a sum of ₹ 2 lacs with the Interim Resolution Professional Mr. Vinod Kumar Chaurasia to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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