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TMI Blog2020 (9) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the Appellant is that the Appellant had entered into a Contract Agreement (Annexure A-4 - Page 80) as Contractor with the Respondent - Corporate Debtor being "Employer" for construction of Ritz Carlton Hotel in Bangalore for Respondent and the Agreement was executed on 19th March, 2008. The Appellant claims that the work of the construction of the hotel was completed in 2012 and the hotel is functional since 2013. The Appellant claims that the Final Payment Certificate (Annexure A-6 Pages 90-91) was delivered on 31st October, 2014 and in spite of reminders, the balance due amount of Rs. 6,03,55,646/- has not been paid. Demand Notice under Section 8 of IBC dated 28th September, 2017 (Annexure A-8 - Page 94) was sent. The Corporate Debtor sent Reply dated 28th October, 2017 (Annexure A-9 - Page 97) but did not raise any dispute as such. The subsidiary of Respondent, namely Nitesh Residency Hotels Private Limited (NRHPL) however sent a response dated 2nd December, 2017 (Annexure A-10 - Page 98) although the Notice under Section 8 of IBC was not sent to NRHPL. Appellant then filed Application under Section 9 of IBC (Annexure A-11 - Page 100) on 22.12.2017. Appellant claims that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Final Payment Certificate, the Appellant sent letter (Page - 822) on 29th November, 2014 asking for release of Rs. 6,03,55,646/- as unpaid dues. (Record shows that on 29th November, 2014, such letter was sent to "NRHPL" and not Respondent, for release of balance Rs. 6,03,55,646/-. The document is at Page - 822 of the Appeal seeking payment from NRHPL.) Appellant claims that series of letters were sent thereafter to the Respondent for payment and ultimately, notice under Section 8 was sent to Respondent. The Notice is at Annexure - A-8. Appellant claims that the Respondent sent Reply (Annexure A-9) merely stating that the issues raised by the Appellant need to be discussed and discussion was required for arriving at a mutual settlement amicable to both sides. Thus, according to the Appellant, no dispute as such was raised and the Application should have been admitted. Reference is made also to the Response sent by NRHPL on 2nd December, 2017 (Annexure A-10) and the disputes raised by NRHPL. According to the Appellant, the employer was Respondent and thus, NRHPL was not relevant and case put up with regard to NRHPL should have been ignored. Appellant claims that the Application und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as employer. There is no dispute that for the works executed, for various factors relating to execution of the contract, NRHPL transacted with the Appellant. Appellant accepts that even payments were made by NRHPL also. With such state of affairs, it cannot be expected, considering the provisions of IBC and the nature of proceedings which exist under Section 9 of IBC, that the Adjudicating Authority should examine in details the various terms and to give a Judgement as such as to who the "employer" actually was. Appellant itself is accepting that NRHPL signed Letter of Intent; in Appendix of Tender "Employer" is NRHPL; Substantial Completion Certificate and Taking Over Certificate dated 07.04.2014 were issued by NRHPL. Admittedly, payments were also made by NRHPL and even Taking Over Certificate was with NRHPL. There are so many other documents also. 8. Various documents on record itself show that the defence of Respondent on this count with regard to who is the employer requires a tripartite adjudication, is not baseless. We have perused Annexure - A-4 (Page - 88). It is titled Contract Agreement dated 19th March, 2008. The index (Annexure - A-4) claims that the Agreement is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NRHPL was not liable to pay, there was no reason for the Appellant to have made such claim of amounts from NRHPL. 10. The learned Counsel for Respondent argued that all communications regarding defects in works, were sent by NRHPL to the Appellant. During execution of the Agreement, the Appellant communicated only with NRHPL for grievances, discussion and information. It is argued that even the taking over Certificate dated 7th April, 2014 was signed and handed over to the Appellant only by NRHPL. The taking over Certificate was issued subject to completion of balance works which included several defective works. The Reconciliation Statement dated 31st October, 2014 (Page - 90) does not include Debit Note dated 21st August, 2014. The other Debit Notes were also issued by NRHPL. The Reconciliation Statement is not signed by the Respondent - Corporate Debtor, it is argued. 11. According to the Respondent, the Reconciliation Statement is not "Final Payment Certificate" as required in the contract and Respondent is disputing the validity of the same. It is claimed that it is only recommendatory Statement of Reconciliation prepared by the Engineer. It is argued, it is not binding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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