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TMI Blog2022 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ECHNICAL MEMBER 1. The present appeal has been filed by the 'Appellant' under Section 61 of the 'Insolvency and Bankruptcy Code, 2016' (in short 'Code') against the impugned order dated 12.02.2020 passed by the 'Adjudicating Authority' (National Company Law Tribunal), Ahmedabad Bench in CP(IB) No.620/NCLT/AHM/2018. 2. Brief facts of the case have presented by the Appellant in pleadings/submissions made by the Ld. Counsels are stated hereunder: a. The Appellant/OC was awarded by the Respondent/ Corporate Debtor (CD) three works orders against Letter of Intent (LOI) dated 01.02.2016. The three works orders are of 15.02.2016, 11.04.2016 & 04.04.201. b. It has also been stated that value of first work order was amended at a figure whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng delay in execution of the work by the Appellant could not have been considered as pre-existing dispute. If that be so, than why they have placed further orders in April, 2016 and December, 2017 even has enlarged the scope of the work on the first work order. So as per the Appellant, the Appeal deserves to be allowed and has requested to set aside the order of the Adjudicating Authority dated 12.02.2020 and his application filed before the Adjudicating Authority be admitted etc. 3. The Adjudicating Authority in its order dated 12.02.2020 has observed that there is a delay in execution of the work, various correspondence between 09th April 2016 to November 2017 reflects slow progress of work, delayed in clearance of calculation, dispute i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carries a term of LD , PBG etc .The Respondent has also submitted that the Appellant has not submitted valid Performance bank guarantee till the warranty period as per the contractual terms. The Appellant has failed to provide documentary evidence of the payment of royalties, local taxes etc. as per the contractual terms. As a result of all this, the Respondent has replied to the Demand notice raising all such issues. 6. The Respondent has also filed Money Suit No.16 of 2019 against the Appellant on or about 09.01.2019 before the City Civil Court at Calcutta seeking LD of Rs. 30,53,802/- and on account of losses suffered due to such delay further damages of Rs. 50 lakhs. In any case this is post issue of demand notice. The Respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding [payment] of the operational debt in respect of which the default has occurred. Section 9 - Application for initiation of corporate insolvency resolution process by operational creditor. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under subsection (1) of section 8, if the operational creditor does not receive payment from the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no [payment] of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a summary proceeding, the voracity of the statement cannot be examined like a trial court. e. Pre-existing dispute and chasing for payment also cannot be ruled out in this instant case. f. The Hon'ble Supreme Court in Civil Appeal No.9597 of 2018, "Transmission Corporation of Andhra Pradesh limited Vs. Equipment Conductors and Cables Limited" vide para 15 has already held that IBC is not intended to be a substitute to a recovery forum and also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. g. Considering the above facts and circumstances of the case and the law laid down on the subject, we are not in a position to set aside the order of the Adjudicating Authority and we uphold the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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