TMI Blog2021 (7) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... te debtor had also requested the applicant to complete the work at site - corporate debtor had also raised dispute in its reply to the demand notice of the applicant. Thus, a conclusion can be drawn that there is Preexistence dispute which was raised by the corporate debtor time and again much prior to the notice served under section 8 of I B Code. It is a fit case to reject the application under section 9 of the I B Code - the application is rejected. - Company Petition No. IB-611/ND/2019 - - - Dated:- 20-7-2021 - DR. DEEPTI MUKESH HON BLE MEMBER (JUDICIAL) And MS. SUMITA PURKAYASTHA HON BLE MEMBER (TECHNICAL) FOR THE APPLICANT : Mr. Nupoor Maharaj, Adv. FOR THE RESPONDENT : Mr. Karan Gandhi, Adv. Ms. Sudiksha Saini, Adv. ORDER Per-Dr. Deepti Mukesh, Member (Judicial) 1. The Present Application is filed under Section 9 with Section 13, 14 33 of the Insolvency and Bankruptcy Code, 2016 (for brevity code ) read with Rules 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), 2016 (for brevity the Rules ) through and by Sh. Sarish Saxena, being the Director of M/s Value Line Interiors Pvt. Ltd. (for brevity Applicant ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor has been continuously changing the management teams, which were looking after the completion of interior works by the applicant and also pointed delay tactics deployed by the corporate debtor in their email communication dated 23.04.2018. 7. The applicant states that interior had been duly completed and handed over to the corporate debtor on 31.10.2015, which has also been communicated to the corporate debt by email dated 21.04.2018, but the corporate debtor neither made payment nor raised any dispute. 8. The applicant sent demand notice under Section 8 of the code on 02.11.2018 calling upon the corporate debtor to pay the total amount of 14,16,332/-.The applicant submits that the notice had been duly served on the corporate debtor via speed post. The Copy of demand notice along with postal receipts and its tracking reports has been annexed. 9. The applicant submits that the corporate debtor filed reply to the said notice and raised disputes as follows: a) That the work done is incomplete and hence completion certificate cannot be awarded, the services provided are also of poor quality. b) That no amount is due and payable to the applicant. c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cleared. Also, stated that the last invoice of ₹ 9,97,208/- is malafidely raised, hence not payable. d) That for invoking the provision of Section 9, there has to be an existence of debt within the meaning of Section 3(11) of the code. As there is no amount due and payable, therefore there exists no debt. Moreover, the claim of the applicant also stands rejected under the provisions of Section 5(21) of the code, which deals with the definition of operational debt and provides that the claim must be in respect of provisions of goods and services, relying on Mobilox Innovations Limited Vs. Kirusa Software Private Limited. In the present case the services were not provided, and whatever work was done, it was incomplete and on this ground the application must be rejected. e) Applicant has failed to appreciate that even prior to the last invoice dated 07.06.2018 raised, the corporate debtor in response to email dated 23.04.2018, had already informed the applicant that the work was not completed in terms of work order dated 31.10.2015 and the applicant vide email dated 24.09.2018 admitted the fact that they are yet to hand over the site to the corporate debtor. The email r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was inform from time to time to al project team by mail. However, no disputes had been raised by the corporate debtor. b) That the corporate debtor in its reply to the demand notice has raised false and frivolous disputes with regards the delay in service and incomplete work and has failed to prove the existence of any pre-existing dispute against the applicant, relying on judgment of Hon ble Supreme Court of India in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited. Further emphasized that work was completed within the stipulated time and as per clause 7 of the Work Order, the applicant was entitled to 95% of the total outstanding amount, the corporate debtor had the right to withhold only 5% of the total outstanding amount, if any. 13. The date of default is 22.01.2018 and the present application is filed on 24.01.2019. Hence the application is not time barred and filed within the period of limitation. 14. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 15. The present application is filed on the Performa prescribed under Rule 6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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