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TMI Blog2020 (1) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Insolvency Resolution Process (CIRP) against M/s. VME Infrastructures Pvt. Ltd. (hereinafter called as "Corporate Debtor"). 2. Part - I, of the Application discloses the fact that the Petition has been filed by a Proprietorship concern. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Limited Company with CIN:U45200TN2007PTC062590 which was incorporated on 02.03.2007 and that its Authorised Capital and Paid up Capital is Rs. 50 Lakhs and Rs. 1.5 Lakhs respectively. The Operational Creditor has not stated the Registered Office of the Corporate Debtor in the Application, however as per the MCA records, the Registered Office of the Corporate Debtor is si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered by one of us while sitting in New Delhi Bench in R.G. Steels -Vs-Berrys Auto Ancillaries (P) Ltd. in IB-722/ND/2019, wherein it has been held as follows; "......Prima facie from the Petition, it is evident that the petition has been preferred by M/s. RG Steels stated to be a Sole Proprietary Concern. However, by virtue of definition as contained in Section 3(23) of IBC, 2016, a person eventhough includes an individual it does not include within its ambit a Sole Proprietary Concern. It is also required to note that from the definition as given in Section 5(20) of IBC, 2016 an Operational Creditor has been defined as a 'person' to whom an Operational Debt is owed and includes any person against whom such debt has been lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 spot should be accessible with proper roads. In case, the roads are improper for equipment movement, the same should be laid by VME. Thus, Clause 11 of the Work Order dated 11.11.2017 manifest the fact that the Corporate Debtor had ordered for the 300 tones crane to dismantle the tower crane based upon the confirmation given by the Operational Creditor upon their Engineer's inspection of the Zoho site. 13. In the instant case, it is evident from the records that the said Crane was subjected to major accident in the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient has been lost and future orders were cancelled......." It is pertinent to note here that, the Corporate Debtor has replied to the Operational Creditor's mail on 27.06.2018 and the Operational Creditor is sending the Demand notice to the Corporate Debtor only on 16.07.2018. A perusal of the said mail would posit the fact that the Corporate Debtor 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute [Section 8(2)(a)l. What is important is that the existence of the 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.." At paragraph 51 it is held: "51. ......Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence." Thus, it is evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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