TMI Blog2022 (3) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... of issuance of Demand Notice under Section 8 of the IBC. In the instant case, the Petitioner issued the Demand Notice on 27.11.2017. It is the specific case of the Respondent that vide letters dated 12.09.2014 and 03.03.2016 (Annexure A2 of the Statement of Objections) they have raised various disputes about the defects and delayed work of the Petitioner and hence the C.P. is liable to be dismissed on the ground of pre-existing dispute - On the other hand, the Petitioner also admitted the receipt of the letter dated 03.03.2016 from Respondent where under various defects and deficiencies were raised by the Respondent and also where it was stated that if the Petitioner fail to complete the said works they will deploy other agencies and get the work done. The Petitioner further admitted that he has replied to the said letter dated 03.03.2016 expressing its willingness to complete the work demanded, however subject to payment of acknowledged debts. There were pre-existing disputes between the parties before the issuance of the Demand Notice by the Petitioner - petition dismissed. - CP (IB) No. 17/BB/2018 - - - Dated:- 10-3-2022 - Ajay Kumar Vatsavayi , Member ( J ) And Manoj Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent recommendation letter for an amount of ₹ 36,03,306/- and retention amount of ₹ 3,81,281/- was issued and acknowledged by the Respondent on 07.01.2015. 5. It is further stated that the Respondent issued a letter dated 03.03.2016 to the Operational Creditor demanding for completion of work by deploying the manpower and if the same is not done within 15 days, then the Respondent shall deploy other agencies to complete the remaining work. In response to the aforesaid letter, the Operational Creditor has replied vide email dated 03.03.2016 stating its willingness to complete the work demanded for subject to payment of acknowledged debts. However, the Respondent failed to make the payment as per the terms of the work order and opted to complete the pending work by hiring 3rd Party contractors. 6. It is also stated that the Operational Creditor has issued the Demand Notice in Form 3 dated 27.11.2017 to the Respondent and the Respondent has given any reply to the said Demand Notice. 7. The instant Petition is opposed by the Corporate Debtor by filing its common Statement of objections dated 19.07.2019, by inter alia contending as under: (1) The instant petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.07.2011 for carrying out water proofing work at Nitesh Flushing Medows and work order dated 26.09.2013 at Nitesh Columbus Square which was accepted unconditionally by the Respondent. The terms and conditions of the said work order were discussed well in advance between the parties. Upon agreeing the said terms arid conditions mutually that the Respondent started its water proofing work at the said site. (7) It is stated that right from the day the Petitioner started its work on the building, there have been several faulty works been carried out by them. The said defects were immediately brought to the notice of the officials of the Respondent. The officials of the Respondent assured the Petitioner that the defects in the construction would be sorted at the earliest and till such time the balance payment to be made can be kept on hold. Upon accepting the work order, the Petitioner has specifically agreed to complete the said work within few month. The fact that the completion certificate hasn't been issued to the Petitioner itself shows that the works carried out by them haven't been completed by them. The Engineer himself stated that the works carried out by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same shall be replaced at no extra cost to us.' The terms and condition of the work order dated 26.09.2013 has been agreed between the Respondent and the Petitioner well in advance and the Petitioner is attempting to implement the work order in half as per their convenience whereas all the terms and condition of the work order has to be read as a whole and not in parts including clause 1 of the General Terms and Conditions of the work order dated 26.09.2013. Despite the receipt of several reminders from the Respondent, the Petitioner had preferred the present petition without curing the defects in its work that was conducted with defects. (4) The debt amount as mentioned in the Form 5 as per Rule 6(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by the Petitioner has not been crystallised. The debt amount mentioned in the Demand notice in Form 3 dated 27.11.2017 issued by the Petitioner is ₹ 39,84,587/- whereas the debt amount mentioned in the petition is ₹ 66,82,795/. There is a difference of amount of ₹ 26,98,208/-. The petition in Form 5 should be replica of demand notice. The Petitioner has also not mentioned any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 24.01.2020. This Hon'ble Tribunal vide order dated 31.03.2021 admitted I.A. No. 408 of 2020 restoring the original company petition before this Hon'ble Tribunal for fresh hearing and was listed on 19.04.2021. Therefore, this matter would come within the purview of the said notification 24.03.2020 and the petition would be barred as the claim amount in the present petition is less than Rupees One Crore. Thus, the present petition is liable to be dismissed on this ground too. 9. In response to the aforesaid objections, the Operational Creditor has also filed its rejoinder's dated 23.08.2019 and 06.12.2021, by inter alia stating as under: (1) It is submitted that the amount claimed by the Operational Creditor under the main Petition is based on the Certificate of Payment issued by the Respondent herein duly acknowledging the completion of work and its quality. Further, as per Clause 7(b) of the Articles of Agreement dated 25.09.2013 forming part of the Work Order states that Contractor shall be entitled to raise interim monthly Bill for the work completed. Hence, the due claimed is duly acknowledged and raising a dispute now do not arise. Accordingly, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within three years from the date of expiry of the extended time line which was 28.02.2015, the CP. is well within the period of limitation. Even otherwise the Respondent/Corporate Debtor in Annexure A3 Audit Report pertaining to the Petitioner enclosed to its statement of objections filed in the CP., admitted that the extended date of completion of the subject work order was 28.02.2015. Hence, it cannot be said that the CP. is barred by the period of limitation. 13. It is a settled principle of law that the relevant date for consideration of existence of any dispute between the parties is the date of issuance of Demand Notice under Section 8 of the IBC. In the instant case, the Petitioner issued the Demand Notice on 27.11.2017. It is the specific case of the Respondent that vide letters dated 12.09.2014 and 03.03.2016 (Annexure A2 of the Statement of Objections) they have raised various disputes about the defects and delayed work of the Petitioner and hence the C.P. is liable to be dismissed on the ground of pre-existing dispute. It is also submitted by the Respondent that the Audit Report in respect of the Petitioner Company and in respect of the Project Nitesh Columbus Square, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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