TMI Blog2020 (9) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... or purpose of interpretation, we would ignore the initial portion of Annexure A-4, where the Respondent - Nitesh Estates Limited is called the employer . It is apparent that the document itself says that the employer would be as stated in the conditions of contract and document at Page 128 says that the employer is NRHPL. We have looked into this as learned Counsel for Appellant wanted us to lift the corporate veil and see. The Respondent is right in saying that it requires tripartite adjudication, considering different documents and conduct of parties. Time Limitation - HELD THAT:- Appellant claims that project was completed in 2012 and the hotel was taken over in 2013. Take Over Certificate is stated to be dated 07.04.2014 The Application under Section 9 filed on 22.12.2017 would thus be clearly time barred with regard to the debt claimed. If the project was completed in 2012, the amounts payable must be said to have become due. When the works are completed and the hotel is also taken over and made functional, the time had begun to run. Whether or not this or that formality was completed would not stop the running of time. Pre-existing dispute or not - HELD THAT:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of reminders, the balance due amount of ₹ 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 the Adjudicating Authority has wrongly dismissed the Application and thus, the Appeal. 3. The Adjudicating Authority after hearing the parties and considering the case put up by the Respondent Corporate Debtor, found that there was existence of dispute with regard to the debt and default and that the claim was also barred by latches and limitation. 4. It would be appropriate now to refer to some more details with regard to the case of the Appellant. The Appellant claims that the tender for the construction was floated by the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xure 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 under Section 9 of IBC was filed on 22.12.2017 and on same date, the Appellant had also invoked arbitration proceedings. The arbitration proceeding was initiated against Respondent and NRHPL, both. 6. The case put up by the Respondent before the Adjudicating Authority and before us in Reply (Diary No.14723) and the arguments raised may now be referred. The Corporate Debtor claims that the fact that the date on which Application under Section 9 was filed, on same date arbitration proceedings were also initiated by Appellant, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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 only of three pages (Pages 80 82). Clearly, there are other documents. The Appeal has referred to only these pages from the Agreement, as the Contract. At Page 80, in the beginning of the Agreement, the title is The employer and the Contractor agree as follows:- Then Serial No.1 states that In this Agreement words and expression shall have the same meanings as are respectively assigned to them in the Conditions of Contract hereinafter referred to . Now if Page 127 of the Appeal is seen, the title is D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on the Respondent or NRHPL. It is not counter signed by the Corporate Debtor. The Final Payment Certificate as per Clause 14.10 of General Conditions of Contract was to be preceded by a Statement of Completion by the employer. No such Certificate has been issued by NRHPL. NRHPL did not issue Final Statement of Completion and was required to engage services of other party to complete the works. 12. We have gone through this document at Page 90 (Annexure A-6). It has been prepared by Davis La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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