TMI Blog2020 (1) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the Petitioner is a person as defined under Section 3(23) of the IBC 2016, and as a consequence the Petition is liable to be dismissed on this ground itself as not maintainable. From the email addressed by the Corporate Debtor to the Operational Creditor, it is evident that the Corporate Debtor raised a dispute with regard to quality of service which is prior to issuance of Demand Notice - it is evident that there is a pre-existing dispute between the parties in relation to the quality of service provided by the Operational Creditor. By taking into consideration the definition of a person , the Proprietary Concern cannot in its own name file a petition and also in view of the pre-existing dispute between the parties, we are constrained to dismiss this petition - Petition dismissed. - IBA/717/2019 - - - Dated:- 6-1-2020 - R. Varadharajan, Member (J) and Anil Kumar B., Member (T) For the Appellant : R. Prashant, Advocate for Norton Grant For the Respondents : Jayesh B. Dolia and T. Geethanjalli, Aiyar and Dolia ORDER R. Varadharajan, Member (J) 1. This Application has been filed under Section 9 of the Insolvency Bankruptcy Code, 2016 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payments and the Operational Creditor has issued email and letter to the Corporate Debtor calling upon them to pay the amount outstanding which is of no avail. Under these circumstances, the Operational Creditor has filed the present petition under Section 9 of the IBC, 2016 to initiate CIRP against the Corporate Debtor. 7. The Learned Counsel for the Corporate Debtor submitted that pursuant to the work order dated 11.11.2017, due to the deficiency in the quality of the crane provided by the Operational Creditor, there was an accident at the work site leading to severe damage to the building and on account of the same, the Corporate Debtor was compelled to engage the services of different agency to execute the same work which caused additional financial burden upon the Company and as a consequence the Corporate Debtor had suffered reputational damage and loss of business. 8. It was further submitted by the Learned Counsel for the Corporate Debtor that even before the issuance of the Demand Notice, the Corporate Debtor has by its email dated 27.06.2018 has categorically denied any further payments to be made to the Operational Creditor on the ground that the Operational Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined under Section 3(23) of the IBC 2016, and as a consequence the Petition is liable to be dismissed on this ground itself as not maintainable. 12. As to the merits of the case, it is relevant to refer to the terms and conditions of the work order dated 11.11.2017, which is extracted hereunder; Terms Conditions 1. Shift house include assembling and dismantling period. Assembling maximum 5 Hrs (half a Day) Dismantling maximum 5 Hrs (Half a day) 2. DIESEL at VME Scope 3. Slings at VME scope 6. No idle payment should be claimed during rain 7. You should provide necessary documents for your Equipment's 8. Advance will be given only after the mobilization of crane. 9. You should supply well experienced operators for this operations. 10. Payment will be made within 15 Days from the submission of the bills. 11. These rates applicable only for dismantling of tower crane. On your Engineer's inspection and confirmation only we are ordering for 300 tones cranes to dismantle the tower crane in our Zoho site. If dismantling cannot be done with the capacity crane, no payment should be claimed. 12. The Access road to the work spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or has raised a dispute with respect to the deficiency of service rendered by the Operational Creditor in as much as referring to Clause 11 of the work order and stating that the Operational Creditor has not completed the entire work and in the said circumstances the Operational Creditor is not entitled to any payment as claimed for in the petition. 15. Section 5(6) of the IBC 2016 defines dispute as: dispute includes a suit or arbitration proceedings relating to:- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty From the aforesaid email addressed by the Corporate Debtor to the Operational Creditor, it is evident that the Corporate Debtor raised a dispute with regard to quality of service which is prior to issuance of Demand Notice. 16. The Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited; 2017 1 SCC Online SC 353 held that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be and observed as follows; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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