TMI Blog2022 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... duced, admittedly in existence before the receipt of the demand notice, its our foregone conclusion that the plea raised by Corporate Debtor of pre-existing dispute has merit and do not appear to be patiently feeble legal argument/assertion unsupported by evidence. And as a consequence thereof present application under Section 9 of IBC is hereby rejected. Application dismissed. - C.P. (IB) No. 2000/KB/2019 and I.A. (IB) No. 449/KB/2020 - - - Dated:- 22-12-2021 - Rohit Kapoor, Member (J) And Harish Chander Suri, Member (T) For the Appellant : Rituparna Sanyal, Adv. For the Respondents : Abhrajit Mitra, Sr. Adv., Satadeep Bhattacharya, Ajay Agarwal, Sankat Sarawagi and Arka Banerjee, Advs. ORDER 1. The Court is convened by video conference today. 2. This petition under section 9 of the IBC has been filed by M/s. Saha Enterprise, a proprietorship firm, having its registered office at Po PS-Baruipur, Puraton Thana, Kolkata- 700144, West Bengal. (hereinafter referred as the Operational Creditor) through Mr. Gopal Chandra Saha, its Proprietor, seeking initiation of corporate insolvency resolution process in respect of M/s. CFM Infratex Limited, CIN: U15311W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the Demand Notice along with the postal receipts and track report and copy of the electronic mail are annexed as Annexure-G to this petition. 6. It is submitted that the Corporate Debtor duly received the said Notice issued by the Operational Creditor. The Corporate Debtor through its Advocate has issued a reply vide letter dated 3rd October 2019. Copy of the reply is annexed as Annexure- H. It is further submitted that the Corporate Debtor with a view to escape from its admitted liabilities have made various false and concocted story, however, the same is not tenable in the eye of law. 7. It is submitted that in view of the foregoing circumstances, an amount of ₹ 78,87,525/- is due and payable by the Corporate Debtor towards availing the services from the Operational Creditor. It is submitted that the first date from which the debt fell due with respect to the said invoices was on 01.12.2017. 8. It is further submitted that amount claimed to be in default of ₹ 78,87,525/- is due and payable with respect to the supply and construction related work of the Corporate Debtor against several invoices raised upon the Corporate Debtor and the debt fell due on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor to the Operational Creditor are annexed as Annexure-C. 15. It is submitted that the Operational Creditor, despite repeated requests on the part of the Corporate Debtor, has failed and/or neglected to rectify the defects in respect of the civil works which were carried out by him at the said premises. 16. It is further submitted that in the said circumstances, the Corporate Debtor had no other alternative but to carry out necessary rectification works at the said premises through other contractors at the risk and cost of the Operational Creditor. The same has also been duly brought to the notice of the Operational Creditor both orally as well as in writing. This would be evident from the respondent's letters which have already been referred hereinabove. 17. It is submitted that the in view of the deficiency of service on the part of the Operational Creditor and/or failure on the part of the Operational Creditor to carry out necessary civil works as per the terms of the Work Orders the Operational Creditor is not entitled to claim payment of any further alleged dues. 18. That it is submitted on behalf of Corporate Debtor that applicant having acted in material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable by the Operational Creditor to the Corporate Debtor upon such enquiry. (e) Interim interest and interest upon judgment on the aforesaid sum at the rate of 18% per annum. (f) Receiver. (g) Injunction; (h) Attachment; (i) Costs (J) Such further or other reliefs or relief. 22. It is submitted that the subject matter of the suit is similar to the subject matter of the present application. 23. It is further stated by the Corporate Debtor that a complaint has also been filed on 27th September 2019 itself against one Mr. Satish Kumar Agarwal and the applicant. In pursuance to this, complaint has been registered as F.I.R. and Police Authorities have started investigation. Documents in this regard have been annexed as Annexure-H to the reply affidavit. 24. The Corporate Debtor has further stated that it received notice under section 8 of IBC on 13th September 2019 and reply was submitted to this notice on 3rd October, 2019. 25. It is submitted that the Corporate Debtor in its notice of dispute dated 3rd October 2019 issued in reply to the Applicants purported under section 8 notice dated 25th September, 2019 which has been annexed to the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n we have come to know that the thickness of the bedding material as charged by you has not been physically found at site. 2. On detailed scrutiny we have found some anomalies in your bills also. You have claimed grass purchase, cutting and laying for the total area of 741 sq.m. As you are well aware the grass laying has been done on less than 50% of the claimed area. Hence, this claim of yours is wrong and mala fide. You are requested to meet us at H.O. and clear the above matters. For CFM Infratex Ltd. Manager-Accounts Date: July 11, 2019 To Saha Enterprise Prop: Gopal Chandra Saha P.O. PS- Baruipur, Baruipur Puraton Thana, Kolkata- 700144 Dear Sir, Ref: Your Bill No. CFM/SE/11 dated 23.04.2018 After repeated follow ups you have submitted the details of the above mentioned bill last week: In reference to the above Bill we would like to bring to your notice that there seems to be error in your bill preparation. You have charged for demolition work and rubbish removal on the West side boundary wall. The above work order was for the East side Boundary wall. Furthermore, the rubbish removal from site was done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,64,109.00 3 Bill/SE/09/2018-19 2,11,826.00 Please also note that your envelop does not enclose any of the bills mentioned in the letter. You are advised to kindly come to our office and clarify the matter. Thanking you, Yours Faithfully, For CFM Infratex Ltd. Manager Accounts . 28. In the Rejoinder by applicant, it has been stated that the above referred letters were submitted by Corporate Debtor after long completion of work and submission of invoices, which are frivolous in nature and without any basis. It is further submitted that the measurement ship and the bills are annexed as Annexure-B to show that the contentions of the Operational Creditor are not correct. 29. We have heard the rival contentions of both the parties and perused the record and we find as: I. One email along with Notice under Section 8 is also stated to have been sent on 27th September 2019 at 3.38 am, which is annexed at page 186 of the application. It finds reference to a speed post dated 25th September 2019. Notice under section 8 of the Code was sent through speed post and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s laid down by Apex Court, and considering the material on record particularly the communications reproduced above, admittedly in existence before the receipt of the demand notice, its our foregone conclusion that the plea raised by Corporate Debtor of pre-existing dispute has merit and do not appear to be patiently feeble legal argument/assertion unsupported by evidence. And as a consequence thereof present application under Section 9 of IBC is hereby rejected. 30. The Operational Creditor may, however, pursue any other legal remedy that may be available under law to it for the redressal of its grievance. 31. IA. No. 449/KB/2020- This application has been filed by M/s. CFM Infratex Limited in CP(IB) No. 2000/KB/2020 seeking dismissal of the C.P.(IB) No. 2000/KB/2019 and stay of all the proceedings. Since C.P.(IB) No. 2000/KB/2019 filed by the Operational Creditor under section 9 of the IBC has been rejected vide order is being passed by this Adjudicating Authority, this IA also stands disposed of. 32. Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities. - - TaxTMI - TMITax - Insolvenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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