TMI Blog2020 (9) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor has alleged breach of contractual obligations to complete the project, provides safety to workers at site, absence of appropriate work permits, failure on the part of Petitioner to improve work conditions at site, failure of the Petitioner to appoint representative to have the quality check, constant labor strike, breach of general terms and conditions of contract more particularly clause 14.2(1) and (3) which categorically states that all RA bills shall have an attach duly certified material reconciliation statement. It is clearly established that the claim of the Petitioner is not a debt and does not demonstrate as the debt under Section 5(21) of the Code. The Corporate Debtor has raised disputes regarding quality of the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority) Rules, 2016.The Petition is filed on 10.10.2019 for initiating Corporate Insolvency ResolutionProcess (CIRP). 2. The Petition reveals that the Petitioneralong with other companies participated in the tender process advertised by the Corporate Debtor. The Corporate Debtor, on 27.05.2016, entrusted the work of construction and awarded the work order to the Petitioner for construction of 8,77,965 sq. feet at the rate of ₹ 1170 per square feet, totaling the estimated amount to ₹ 102,72,19,050/-. 3. The Petitioner accepted the said work order and continued to work till the Corporate Debtor terminated the work order on 26.02.2019 by an email. In this period, the Petitioner completed 100% work of plinth and raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : a. It was submitted that the Petitioner has falsely contended that the Corporate Debtor did not reply to the demand notice dated 21.09.2019. The Corporate Debtor replied to the said notice on 02.10.2019 and the Petitioner had received the Corporate Debtor s reply to the demand notice long before filing of this Petition. However, the Petitioner had deliberately suppressed this document and did not annex the same to the Petition even though the reply to the demand notice was filed within a period of 10 days stipulated under Section 8(2) of the Code. Also, the Petitioner had responded to the Corporate Debtor s reply on 16.10.2019. b. It was submitted that the Petitioner falsely alleged that the amounts claimed by it are due under elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as per Section 9(3)(b) of the Code. But, the Petitioner, in the present case, has failed to file any affidavit to state that the Corporate debtor has not given any notice disputing the operational debt. e. It was submitted that the Petitioner s work was sub-standard and was not carried out in accordance with the agreement between the parties and industry norms. For instance, there were several issues regarding safety of laborers at the site. On 22.08.2016, the Corporate Debtor was constrained to complain about the absence of appropriate work permits and the ignorance of the site engineer appointed by the Petitioner. On 25.10.2016, the Corporate Debtor again pointed out the unsafe working conditions at site. As the Petitioner failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations and failed to complete the project in accordance with the Contract. The Corporate Debtor addressed several emails between 04.01.2017 and 27.10.2017 for the same. i. It was submitted that the Petitioner failed to adhere to the quality norms as set out in the work order. The Corporate Debtor through its emails dated 19.03.2018 and 25.04.2018 pointed out the Petitioner s failure to pay attention to the quality related issues. 7.Ongoing through the pleadings filed by the parties and hearing the Counsel for the Petitioner and Corporate Debtor, this Bench observes as follows: a. Before issuance of the demand notice, the Corporate Debtor vide email dated 26.02.2019, informed the Petitioner to remove all site establishments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is not a debt and does not demonstrate as the debt under Section 5(21) of the Code. The Corporate Debtor has raised disputes regarding quality of the Petitioner s work, the bills raised by the Petitioner were not duly certified on the basis of joint measurement, non-following due process of certificate of payment and RA Bill no. 4 was issued after issuance of final bill. Therefore, by no stretch of imagination, the Petitioner is entitled to any relief under IBC Code when there are serious disputes raised about the admission of the claim by the Corporate Debtor. e. It is beneficial to refer the judgement of the Hon ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. v/s. Kirusa Software (P) Limited- 2017 (SCC Online SC 115 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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