TMI Blog2021 (5) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... he maintainability of an application, withregards the issue that whether for various claims arising out of separate work orders, single application can be filed by operational creditor - Once the work is complete and final bill is raised, the retention money becomes due and payable. The corporate debtor vide email communication and in its reply to this application had categorically admitted that a sum of ₹ 8,40,000/- is outstanding due and payable to the applicant towards work order ICC-Patna. Though, the corporate debtor has raised dispute prior to issue of the Demand Notice with regards tonon-completion of work on time, defective work and invoices raised, but has itself admitted that retention money is payable - Also, the amount of a debt more than 1 Lakh, which in this case s admitted by the corporate debtor, and the said has become due as per their own statement in their email dated 08.10.2018, leaving no scope for any further adjudication. The application is admitted - moratorium declared. - COMPANY PETITION NO.IB-2135/ND/2019 - - - Dated:- 5-5-2021 - DR. DEEPTI MUKESH HON BLE MEMBER (JUDICIAL) And MS. SUMITAPURKAYASTHA HON BLE MEMBER (TECHNICAL) FOR THE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was completed in December 2018 and thereafter the final bill duly signed and stamped by the Corporate Debtor. The corporate debtor has defaulted in payment of unpaid dues along with interest @ 18% p.a.as per the invoices raised. c) The work order was issued for interior, furnishing works for administrative cum academic building at state Bank Institute of Management (SBIM-I) and Executive Hostel Block at State Bank Institute of Management (SBIM-II) located at plot no. IIF/2 in action area- II New Town, Rajarhat, Kolkata, West Bengal, on 06.12.2016 and 10.04.2017 respectively. The outstanding debt arises from the part dues payable against services rendered and retention amount refundable by Corporate debtor. d) On 06.11.2017 work order was issued forcarrying out interior work at Delhi Gymkhana Club. The applicant states that work has been completed and the final bill has been raised and approved even though the entire bill has been approved. However, the amount towards making of pergola for the corporate debtor is due and payable. e) On 20.02.2018 work order was issued forcarrying out providing and fixing in position of modular types wardrobes at NATGRID, And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute and stated that no amount as stated by the applicant is due and payable. Further also stated that the notice is just a tactic to extract money and the notice under Section 8 is not maintainable in terms of provisions of the code.As the same bears mentioning of numerous work orders with no clarity under the individual work orders and as such the rules and provisions of the I B code cannot be clubbed in one cause of action. The corporate debtor further stated that the interest so charged by the applicant had never been agreed upon between the parties. The corporate debtor also stated that certain amount was recoverable from the applicant with regards the Excise duty, VAT, and retention money with regard the various projects. Hence a counter claim ought to be raised. 8. The applicant states that though there was no condition under the work order to retain any amount of security, however it was agreed that the security would be retained for a period of 1 year but the corporate debtor retained the security amount unilaterally for a period of 3 years. It is further stated that corporate debtor has admitted the retention of security amountvide its email dated 08.10.2018. The wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the illegalities. Thereafter on 17.05.2019 a letter dated 01.05.2019, was received by the corporate debtor, stating that the applicant withdraws the notice dated 23.04.2019, as the same was issued inadvertently by its counsel. c) That applicant has not disclosed all work orders executed between the parties thereby adopting pick and choose technique. Hence, the application is liable to be dismissed on this ground also. Further it is highlighted that there is a pre- existing dispute between the parties, asthe claim amount as stated by the applicant is disputed, since no description as to how the said amount has been arrived at has been provided. Further it is contested that the applicant has charged a substantive amount on interest, in the absence of any interest clause mentioned in any of the work orders. Moreover, work order annexed with the application with respect to SBIM Kolkata, Part-I and SBIM Part-II, it has been specifically mentioned under Clause 1 of the Commercial that the operational creditor shall not be entitled to claim any interest on the delayed payments. d) The corporate debtor states work orders were on back-to-back basis, with the main client, which imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys from the date of Letters of Intent. However, the work was completed in December, 2017 which was way beyond the promised timeline and due to which the corporate debtor suffered losses. It is highlighted that the applicant vide its letter dated 01.10.2018, has acknowledged that the work was completed in December 2017. g) That under the work order ACIL/ICC/WO/20174/443, for services of the applicant at international Convention Centre, Patna, demand was raised by the applicant of ₹ 76,33,096/- and ₹ 3,74,218/- towards outstanding amount and retention money respectively and the corporate debtor vide email dated 08.10.2018 intimated to the applicant that the demand is arbitrary and incorrect. It was furtherstated that the retention money shall be released to the applicant on 28.01.2021 i.e.: after completion of Defect Liability period of 3 years or after submission of bank guarantee of equal amount. h) The corporate debtor has raised a counter claim against the applicant for an amount of ₹ 1,89,19,275/- towards VAT liability with respect to the SBIM-I project and SBIM-II project located at Kolkata. i) That the application under Section 9 is contrary to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor prior to the present proceedings. Also, no evidence to substantiate the alleged defects and deficiencies has been placed on record. g) The applicant has stated that the Corporate debtor has admitted of retaining a sum of ₹ 5,59,669/- as retention money for the defect liability period, which admittedly to be due and outstanding towards the applicant and has also admittedly failed/ refused to pay the same and thus the present application is liable to be allowed on this ground. h) The applicant states that the corporate debtor, in its reply to notice under section 9 had admitted that a sum of ₹ 8,40,000/- is outstanding, which is due and payable. As per the corporate debtor,vide communication dated 08.10.2018, it was stated that the retention money was to be released on 28.01.2021 i.e.: after completion of Defect Liability period of 3 years or after submission of bank guarantee of equal amountto the applicant towards work order ICC-Patna. It is furtherstated that the work was duly completed and the final bill was raised in Feb 2018 and the work order at no place prescribed for a defect liability period. However, the corporate debtor to deny the legitimate dues o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obiter dictum andis not a binding precedent. The Hon ble Supreme Court, remanding the matter back to NCLAT, observed that: Parties are allowed to raise all their contentions before the adjudicating authority. The observations made by this appellate (NLCAT)will not come in the way of adjudicating authority to decide the issue afresh. The Hon ble NCLAT later vide its order dated 11.12.2018, further remanded the matter to NCLT and clarified its previous order barring a single petition for claims arising under different contracts under Section 9 of the I B code by observing that: We agree to the submissions of the petitioner that claims arising out of a multiple agreement can be filed in a single petition under Section 9 of the I B code and it cannot be rejected on this ground The applicant has further relied upon the case of NCLT Mumbai, on the case of Meridian Medals Vs. Gactel Turnkey Projects (CP 159/(IB)/MB/2018), wherein it is held that that a single petition can be filed for claims arising out of separate work orders. g) The applicant has relied upon the case of Supreme Court in J.K. Jute Mills Mazdoor Vs. Juggi Lal Kamlapat Jute Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this ground the application is liable to be dismissed. It is the objection of the corporate debtor that the applicant did not annex the document reflecting any liability. Further the corporate debtor states that the said objection has been taken by the corporate debtor in its reply to notice under Section 8 and the same has not been denied by the applicant even in theapplication.Reference has been made upon the case of Neeraj Jain, Director of Flipkart India Pvt. Ltd. Vs. Cloudwalker Streaming Technologies Pvt. Ltd. Anr. The corporate debtor states that the Form III Column 1 shows only total sum without any details, which renders the demand notice defective. c) The corporate debtor submitted that the claims made under various work orders pertain to security deposit /retention money and therefore does not amount to operational debt within the meaning of Section 5(21) of the code. d) The corporate debtor has stated that there exists pre-existing dispute with regards the following: i. Notice dated 23rd April 2019 and withdrawal of the said notice vide letter dated 01.05.2019. It is stated that the prior to the demand notice, dated 09.05.2019, on the same cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eb 2019 and the present application is filed on 08.08.2019. Hence the application is not time barred and filed within the period of limitation. 16. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 17. The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. 18. Considering the documents on records and submissions made,it is observed that there exists an operational debt which is due and payable by the corporate debtor. Further with respect to the maintainability of an application, withregards the issue that whether for various claims arising out of separate work orders, single application can be filed by operational creditor. There are various judgments passed by the Hon ble Supreme Court and Hon ble NCLAT deciding the issue affirmatively that separate claims can be part of single application. The judgments are also relied by the applicant as referred above. The second issue to be dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above discussion application is admitted. 19. The Applicant has not named an IRP, accordingly, this bench appoints Mr. Satish Kumar Chugh as IRP of the corporate debtor, who is registered vide registration number IBBI/IPA-003/IP-N00270/2020-21/13196, having email id:schugh61@yahoo.comand mobile no. 9818951890, subject to the condition that no disciplinary proceedings are pending against such an IRP named who may act as an IRP in relation to the CIRP of the Respondent. The specific consent is required to be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 have been made. 20. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to the corporate debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force. 21. We direct the Operational Creditor to deposit a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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