TMI Blog2020 (10) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... clubbing different causes of action? - HELD THAT:- The letter of award is only one and it is dated 12.01.2016. Under that letter of award, three work orders were issued. However, date of completion of work/delivery as mentioned as one and same, i.e. 31.08.2016. So, for operational creditor, the cause of action to initiate this proceeding against the corporate debtor had arisen on 31.08.2016 and it was one and the same. In view of this, we hold that the ruling of the Hon'ble NCLAT is not applicable on facts - this application is not defective because of different causes of action are clubbed together - answered in negative. Whether there exists pre-existing dispute about the work carried by the operational creditor and hence, application is not maintainable? - HELD THAT:- The operational creditor did not disclose all above correspondences while filing application under section 9 of IBC against the corporate debtor. Be that as it may, there is sufficient evidence on record to show that there exists dispute in between the operational creditor and the corporate debtor pending even prior to the demand notice under section 8 of IBC sent by the operational creditor to the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim, operational creditor produced on record the copies of work orders, invoices of unpaid claims, demand notice under section 8 of IBC and reply sent to the notice by the corporate debtor. He has also produced some correspondences that has taken place in between him with the corporate debtor in the form of letters and emails, etc. The operational creditor has not suggested the name of the RP for appointment as the IRP and left the matter at the discretion of this authority. He has produced on record the affidavit to comply provisions of section 9(3)(c) of IBC. 5. Notice of this application was duly served on the corporate debtor. It has appeared in the matter through one of its authorised signatory, Mr. Ashwin Gopal R. He filed affidavit-in-reply. 6. We have gone through the contents of the affidavit-in-reply. The corporate debtor did not dispute the fact that as per the work orders, the operational creditor did some civil work at its site noted above. However, it has raised the defence that the civil work carried by the operational creditor was not at all as per the specification and upto the mark. It has raised such dispute with the operational creditor long back in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietary firm, M/s. Sri Ram Constructions. Even the application under section 9 of IBC is filed by the proprietary firm. According to him, the application filed by the proprietary firm is not maintainable because section 9(1) states that, After the expiry of 10 days from the date of delivery of the notice or invoice demanding the payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process . The Ld. Counsel would further submit that section 5(20) of IBC defines operational creditor means a person to whom an operational debt is owed. Section 3(23) does not include a proprietary firm in a definition of a person. Hence, the application filed by the proprietary firm is not maintainable. To substantiate his submissions, Ld. Counsel relied on the order of Coordinate Bench at Kolkata in case of M/s. Bright Star -vs- MC Nally Bharat Engineering Co. Ltd. (C.P. No. 1295/KB/2018). 11. We have gone through the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clubbing of different causes of action. 13. We have gone through the order of the Hon'ble Appellate Tribunal relied on by the Ld. Counsel for the corporate debtor. The Hon'ble Appellate Tribunal, considering the facts in that case, has held that, We are of the view that different claim(s) arising out of different agreements or work order, having different amount and different dates of default, cannot be clubbed together for alleged default of debt, the cause of action is being separate. For the said reasons, we hold that the joint application preferred by appellant under Section 9 is defective, as distinct from incomplete, and, was not maintainable. In this case, we find that letter of award is only one and it is dated 12.01.2016. Under that letter of award, three work orders were issued. However, date of completion of work/delivery as mentioned as one and same, i.e. 31.08.2016. So, for operational creditor, the cause of action to initiate this proceeding against the corporate debtor had arisen on 31.08.2016 and it was one and the same. In view of this, we hold that the ruling of the Hon'ble NCLAT is not applicable on facts. We further hold this application is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational creditor sent the corporate debtor demand notice under section 8 of IBC (Annexure-A, page-16 of Affidavit-in-reply). That notice was replied by the corporate debtor vide letter dated 01.08.2018 (Annexure-B). In the reply, the corporate debtor categorically informed the operational creditor that, From the very beginning your Client performed in extremely poor manner. Even after repeated requests, reminders from both the officials of MBECL and NBCC, your Client could not improve its performance. We reserve our rights to provide you the copies of the letters and other documents which shall establish the fact of poor performance of your Client. It is vehemently denied that Your Client has any influence in the locality and that using the same your Client was carrying out the job in full swing . 15.1 On 04.10.2018, the operational creditor sent legal notice to the corporate debtor (Annexure-D). It was also replied vide letter dated 16.11.2018 and corporate debtor reiterated its earlier stand pointing out that there is a dispute about the work done by the operational creditor and the amount claimed towards work. Alongwith the supplementary affidavit, the corporate debtor pr ..... 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