TMI Blog2022 (7) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued by Operational Creditor to the Corporate Debtor and the same was issued dated 9th of August, 2019 served upon the Corporate Debtor and to which the Corporate Debtor furnished its reply on 23rd of August, 2019. The said reply does not raise any pre-existing disputes regarding the quality of goods supplied - This application is complete in every respect. The application under section 9 of the Code read with rule 6(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against the Corporate Debtor being Bengal Shelter Housing Development Limited is admitted - Moratorium declared. - CP (IB) No. 1680 /KB/2019 - - - Dated:- 22-6-2022 - Shri Rohit Kapoor, Member (Judicial) And Shri Harish Chander Suri, Member (Technical) For Operational Creditor : Mr. Rishav Banerjee, Advocate Mr. Rajarshi Banerjee, Advocate For Corporate Debto : Mr. Reetobrata Mitra, Advocate Ms. Jayati Chowdhury, Advocate Ms. Mandobi Chowdhury, Advocate Ms. Ranjana Seal, Advocate ORDER Rohit Kapoor, Member (Judicial): 1. This Court convened through hybrid mode. 2. This is a Company Petition filed under section 9 of the Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08, by which Earnest Money was deposited by the Operational Creditor with the Corporate Debtor, a true copy of the Statement of Accounts maintained by the Operational Creditor with respect to its transactions with the Corporate Debtor forming the subject matter of the instant disputes and true copies of confirmation of accounts/acknowledgment of sums payable by the Corporate Debtor to the Operational Creditor as on various dates, that were issued at the behest and on the direction of the Corporate Debtor, are annexed herewith and collectively marked as Annexure E . 5.5. The Operational Creditor has on several occasions sought for payment of the outstanding sum from the Corporate Debtor. However, despite repeated requests made by the Operational Creditor, it is yet to receive the outstanding amount/ the debt which is due and payable by the Corporate Debtor to it. 5.6. The last part-payment was effectively made by the Corporate Debtor to the Operational Creditor on 11th August, 2016 as is evident from the said Statement of Accounts and the Bank Statements maintained by the Operational Creditor for the pertinent account. This constitutes an admission of the debt by the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the Operational Creditor and the Corporate Debtor. 5.11. The said privity of contract and the concomitant liability of the Corporate Debtor to pay the said operational debt to the Operational Creditor was duly reflected in the pertinent invoices raised by the Operational Creditor in this regard. A perusal of the said Letter of Intent dated 28th July,2008, will show that that it was issued by the Corporate Debtor itself to the Operational Creditor and a plain reading of the said Agreement dated 10th Septembr,2008 plainly shows it was executed between the Operational Creditor and the Corporate Debtor. A perusal of the said invoices/running bills/ RA Bills will make it evident that the Operational Creditor had always raised its invoices/bills for the works performed directly and/or explicitly against the Corporate Debtor. These invoices/RA Bills were acknowledged by the Corporate Debtor by way of part payments made to the Operational Creditor that were merely debited from the accounts of its group company/subsidiary/associate entity at the behest and direction of the Corporate Debtor itself. 5.12. Part payments against such RA Bills raised directly against the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunicated to the corporate debtor on 06.08.2009 ( Annexure A, page 8 of reply affidavit) , which was duly accepted by acquiescence by operational creditor. 6.3. All payments were made by the Barnaparichay and duly accepted by the Operational Creditor. In fact, the tax deducted at source for such payments and the Form 16A issued on account of such deduction of tax at source were all issued by Barnaparichay. 6.4. Thus, the question of the Corporate Debtor being liable to make any payment to the Operational Creditor on account of construction of the Book Mall at College Street is redundant and does not arise in view of assignment of contract. There is presently no privity of contract between the parties herein. 6.5. The same has also been accepted and admitted by the Operational Creditor, while confirming accounts of Barnaparichay on April 10, 2016. The said Barnaparichay Book Mall Pvt Ltd. is engaged only in one project, i.e., the Book Mall at College Street. 6.6. It is reiterated that the tender was floated and work order was issued by the Corporate Debtor and all payments till the assignment of the contract in favour of Barnaparichay on August 6, 2009, all payments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent and/or concurrence of the Operational Creditor to such a transfer of contractual liability to a third party is void and impermissible in the eyes of the law. 7.2. The Corporate Debtor admittedly floated a tender wherein the Operational Creditor was declared successful. The Corporate Debtor thereafter issued a Letter of Intent to the Operational Creditor that requested the Operational Creditor to mobilize its men and materials for post-tensioning works for a project of the Corporate Debtor named Barnaparichay - The Book Mall . In pursuance of the said letter, the Corporate Debtor admittedly executed a contract (hereinafter called the agreement ) with the Operational Creditor to the effect that the Operational Creditor was to do the post-Tensioning works in sub-structure and super-structure works for the said project of the Corporate Debtor. 7.3. The Corporate Debtor has accepted the goods and services provided by the Operational Creditor in pursuance of the said agreement without any demur or protest and the Corporate Debtor has never raised any dispute whatsoever regarding the quality and quantity of the goods supplied and services provided by the Operational Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same will show that the Corporate Debtor had purportedly attempted to unilaterally transfer its liabilities under the said Agreement to a third party i.e. Barnaparichay Book Mall Pvt Ltd and the Corporate Debtor and the said third party had merely intimated the Operational Creditor that the Corporate Debtor had attempted such a transfer. In reality, the Corporate Debtor attempted to transfer its liabilities under the said Agreement to Barnaparichay and this necessarily has to be distinguished from any mere assignment of its rights under the said Agreement to a third party. 7.11. The Corporate Debtor has wilfully and incorrectly termed such a unilateral, attempted transfer by the Corporate Debtor of its liabilities towards the Operational Creditor under the Agreement as an assignment of contract to Barnaparichay Book Mall Pvt Ltd in paragraph 5 of the counter affidavit in order to mislead this Adjudicating Authority. 7.12. The Corporate Debtor has not placed on the record the existence of any communication that shows that the Operational Creditor had actually consented to any transfer by the Corporate Debtor of its contractual liability to make payments and/or ensure paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is well within the period of limitation. ii. It also is significant to notice the Corporate Debtor has in no way denied the fact on work having been executed by the Operational Creditor. The Ld. Counsel appearing for the Corporate Debtor has drawn our attention to Annexure-A at page 8 of its reply affidavit and has argued that there was an assignment of contract by Corporate Debtor in favour of Barnaparichay which is a wholly-owned subsidiary company of Corporate Debtor and therefore, all the payments are required to be made by Barnaparichay Book Mall Pvt. Ltd. and not by the Corporate Debtor. iii. In this regard, we would like to rely on the decision of the Hon ble Supreme Court in the matter of Kapilaben and Ors. v. Ashok Kumar Jayantilal Sheth [Civil Appeal Nos. 10683-86 of 2014], wherein the following was held: It is well-settled that the term 'representative-in-interest' includes the assignee of a contractual interest. Though the provisions of the Contract Act do not particularly deal with the assignability of contracts, this Court has opined time and again that a party to a contract cannot assign their obligations/liabilities without the consent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t between Corporate Debtor and the Operational Creditor never came to an end and accordingly, the payment of outstanding dues continues to remain the contractual obligation of the Corporate Debtor. vi. From the above facts and the documents on record it is clear that there was a debt due and there is default by the Corporate Debtor in payment of its dues. A demand notice under Section 8 of IBC was issued by Operational Creditor to the Corporate Debtor and the same was issued dated 9th of August, 2019 served upon the Corporate Debtor and to which the Corporate Debtor furnished its reply on 23rd of August, 2019. The said reply does not raise any pre-existing disputes regarding the quality of goods supplied. vii. This application is complete in every respect. It is, accordingly, hereby ordered as follows: - a. The application bearing CP (IB) No. 1680/KB/2019 filed by Usha Martin Limited (Operational Creditor), under section 9 of the Code read with rule 6(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against the Corporate Debtor being Bengal Shelter Housing Development Limited, CIN: U70101WB2004PLC097716, is admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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