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TMI Blog2022 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 2. The Corporate Debtor name has been changed from Nitesh Estates Limited to NEL Holdings Limited on 27.04.2019. The certificate of incorporation pursuant to change of name is enclosed as Annexure - A of the memo for change of name of the Respondent. The corporate debtor namely, M/s. NEL Holdings Limited is a company incorporated on 02.02.2004 with CIN No. L07010KA2004PLC033412 with its registered office situated at Nitesh Timesquare, 7th Floor, No. 8, M.G. Road, Bangalore 560001. The Nominal share capital of the company is Rs. 1,500,000,000/- and paid up share capital is Rs. 1,458,321,000/-. 3. The present application has been filed by the Operational Creditor against the Corporate Debtor in respect of the default amount of Rs. 26,37,269.5/- (Rupees Twenty Six Lakhs Thirty Seven thousand Two Hundred and Sixty Nine only) due towards the Work Order No. NEL/NFM/July-2011/0238 dated 20.07.2011. 4. It is stated that the Operational Creditor completed portion of the work and raised a Tax Invoice dated 04.12.2014 for an amount of Rs. 8,37,405/- and issued the same to the Respondent. However, after inspection of the work done by the Operational Creditor, the payment recommendation l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is been rectified, the payment for the alleged work shall not be made. iii. The alleged debt arises for the year 2011 and 2013. Even in-terms of the work order, "successful completion shall be the date when the contractor achieves completion of all work envisaged under the work order." Therefore, even as on 2016, when the applicant requested for the payment to be released for the alleged work to be carried out, the corporate debtor has specifically stated that unless the works are not completed no payment shall be released. iv. The present petition is totally misconceived and has been filed only to coerce the Respondent to pay certain sums which are disputed by the Respondent and legally unenforceable. The Applicant has not approached this Hon'ble Tribunal with clean hands and therefore the present petition is liable to be dismissed with heavy costs. It is further stated that the applicant is a financially sound and it has assets to a sum of Rs. 90/- crores. Mr. K.B. Swamy is the authorised representative in the instant matter. v. The Applicant proposed to construct world class residential apartments bearing the name and style "Nitesh Columbus square" at Square No. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable for the reasons and grounds set out hereinafter. The instant petition has been filed only with an intention to harass the Respondent and to coerce the Respondent company to adhere to its illegal demands and the same lacks bona fides and is liable to be dismissed on this ground alone. x. He also relied on judgment passed on Hon'ble Supreme Court on 11.10.2018 in the matter of B.K. Educational Services Private Limited v/s. Parag Gupta and Associates, Civil Appeal No. 23988 of 2017. 9. The Respondent has also filed its Additional Statement of Objections on 06.12.2021 vide Diary No. 3384, by inter alia contending as under: i. The present petition has been filed by the Petitioner against the Respondent for a claim of Rs. 33,68,116.6/- for water proofing inter alia work allegedly performed by the Petitioner towards the project i.e. Nitesh Flushing Meadows Project and Nitesh Logo's Project of the Respondent. ii. The instant petition is liable to be dismissed on the ground of multiple causes of action being brought under one petition i.e. different subject matter being mentioned in one petition. The Petitioner placed a work order agreement dated 20.07.2011 entered betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Section 238A of I & B Code, 2016 and Article 137 of Limitation Act, 1963. The present petition has been filed on 9.01.2018. There has been a delay of 1 month and 5 days i.e. 36 days of delay in respect of work order dated 04.12.2014 and delay of 3 years 2 months and 5 days in respect of work order dated 04.11.2011 in filing the present petition after the expiry of the limitation period. Moreover, the Petitioner has also not filed any application for condonation of delay stating cogent reason for such delay. The law does not protect those who sleeps on their right. Thus, the present petition is liable to be dismissed. v. There is a pre-existence of dispute to the nature of work on the basis of which the present petition has been preferred before the Tribunal. The work performance provided by the Petitioner to the Respondent was not satisfactory and defective in quality of the products. As per the work order dated 4.11.2011 the Petitioner were supposed to complete the work on or before 28.03.2013. However, despite several reminders to the Petitioner and request by the Respondent to rectify the defective projects, the Petitioner has failed to come to cure the defects. vi. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Respondent. In the absence of crystallised amount the present petition warrants dismissal on this ground too. ix. Further, there is difference of amount of Rs. 13,27,480/- in the demand notice and in the Petition. Thus the demand notice and the petition is incomplete and defective and suffers from discrepancies. A petition under section 9 of I & B Code, 2016 may be considered to be complete and free from defects only when the demand notice is complete in full. But due to the difference amount of Rs. 13,27,480/- the demand notice itself cannot be considered as complete and demand notice as per Rule 5 of the I & B (AAA) Rules, 2016 cannot be considered to be issued against the Respondent on the basis of which the present petition has been preferred. Thus the present petition is liable to be dismissed on this ground too. x. The amount being claimed by the Petitioner is not an acknowledged debt. There are pre-existence of disputes that have arise on the work allegedly carried out by the Petitioner and which have been pointed out by the Respondent, and therefore a petition under the I & B Code, 2016 cannot be filed when there are pre-existing disputes and the debt itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Petitioner herein has raised various bill including the invoice dated 04.12.2014 against which the Respondent has issued Certificate of Payment dated 09.12.2014, which confirms that the Work Order in question has been duly assigned to the Petitioner. ii. It is submitted that the Respondent has acknowledged the RA Bill 15 and also acknowledges to have accounted in its Books of accounts on 18.12.2014 as regards claims with respect to Nitesh Flushing Meadows Project, which is based on the certificate of payment dated 09.12.2014 issued by the Project in Charge appointed by Operational Debtor. Further, it is also acknowledged that an amount of Rs. 12,98,408/- and Rs. 4,58,277/- (with respect to Nitesh Logos Project) is the amount payable to the contractor as on 07.12.2017 i.e., Operational Creditor. iii. It is submitted that the Petitioner has issued the Demand Notice under Sec. 8 of the IBC only with respect to the principal amount. However, as the Petitioner has claimed an interest of 24% PA over the principle amount in the present Petition as the Petitioner is a MSME registered unit. 11. We have heard the learned Counsel for the Petitioner and learned Counsel for the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the Petitioner cannot maintain that part of the claim in respect of Nitesh Flushing Meadows project against the Respondent/Corporate Debtor. 17. The other claim of Rs. 7,30,847.10/- is pertaining to the retention amount with regard to Nitesh Logos project. The Hon'ble NCLAT in the matter of Ashish Mohan Gupta Vs. Hind Inn & Hotels Ltd. & Anr. in CA (AT) (Ins) No. 1282/2019 dated 12.02.2020 held that the retention money is an operational debt and the period of limitation starts on completion of the defect liability period. It is not in dispute that the Respondent/Corporate Debtor has paid all the remaining dues in respect of the Nitesh Logos project to the Petitioner. It is the specific case of the Petitioner that though it has completed all the works as agreed, to the satisfaction of the Respondent and that is why it has paid all the amounts due but not returned the 5% retention money amounting to Rs. 5,07,340.55/-, within the due date. Hence, the Petitioner is entitled to the said retention money along with the interest thereon totalling to Rs. 7,30,847.10/-. It is not in dispute that the Petitioner has completed the Project Nitesh Logos and the Respondent has paid th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of essential goods or services to the Corporate Debtor as may be specified, shall not be terminated or suspended or interrupted during the moratorium period; vii. The provisions of Section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a Corporate Debtor; viii. The order of moratorium shall have effect from the date of this order till completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under sub-section (1) of Section 31 or passed an order for liquidation of Corporate Debtor under Section 33 as the case may be; 20. The learned Counsel for the Petitioner vide separate document dated 02.08.2019 has proposed Ms. Sumana Rao, Registration No. IBBI/IPA-002/IP-N00059/2017-2018/10111 as the Interim Resolution Professional (IRP) of the Corporate Debtor. Form No. 2 dated 02.08.2019 has been placed on record. However, since Certificate of Registration is not filed, the IRP shall file the same within one week from the receipt of this order. 21. The Law Research Associate of this A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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