9911796707
TMI Blog2022 (8) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, Gurgaon" and "Green Escape, Barota". The Operational Creditor provides comprehensive architectural services to both private and public clients, and the Corporate Debtor is a real estate company. ii. That the Corporate Debtor approached the Operational Creditor for providing architectural consultancy services that include preparing master plans, sanction plans and providing all relevant architectural inputs. The Corporate Debtor engaged the services of the Operational Creditor in relation to the aforementioned projects by way of work agreements that were modified from time to time. iii. That for work to be carried out at "Fernhill, Gurgaon", the agreement was entered into by both the parties on 20.04.2011 and was last amended on 16.06.2015. Under the agreement dated 20.04.2011 amended from time to time, the raised invoices were duly cleared by the Corporate Debtor, however, invoice numbered 27, raised by the Operational Creditor on 17.10.2018 for an amount of INR 7,50,000/-, was accepted but not disputed or paid, by the Corporate Debtor. iv. That for work to be carried out at Green Escape -Barota the Operational Creditor and the Corporate Debtor entered into an agreement f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically denied all the averments made by the applicant. 4. Further, the corporate debtor has argued that there is preexisting dispute prior to the issuance of the demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016, and that it has suffered losses due to deficiency in services by the operational creditor and that thereby the corporate debtor has a counterclaim claim of INR 19.95 crores against the operational creditor. The corporate debtor has stated that issues regarding non-delivery or delay of supply were raised, however no heed was paid to this effect by the corporate applicant. Hence, the dispute. Further, the respondent company had to spend an additional cost for renewal of its license, due to non-delivery of drawings. (i) It is pointed out by the corporate debtor that there was either non-delivery or delay in supply of drawings, due to which the Contractors could not proceed and their work came to a halt and this has resulted into delay in completion of the works of the project which has further led to various dispute/claims by home buyers. In project Greenscape, Barota, structural drawings of non tower in front of Tower 28 have still not been deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim raised by the Operational Creditor in the captioned insolvency petition, which is in any case, denied. The corporate debtor cites Mobilox Innovations Private Limited vs. Kirusa Software Private Limited, 2018 1 SCC 353, wherein it was held that in case of pendency of dispute between the parties, the Insolvency Petition filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 is not maintainable. Hence, it is argued that the operational creditor hasn't reached the adjudicating authority with clean hands and bona fide intention. 5. Another argument of the corporate debtor is that the Application is also defective because the Affidavit has not been duly sworn to comply with the requirements of Section 65A and 65B of the Evidence Act as held by the Hon'ble Supreme Court in the matter of Anvar P. vs P.K. Basheer (2014). 6. The corporate debtor thus points out that the insolvency petition has been filed against the Respondent Company and the initiation of the Corporate Insolvency Resolution Process has been sought by the Petitioner, fraudulently and with malicious intent for reasons, other than for the resolution of insolvency. The same is accordingly, hit by section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and the Corporate Debtor. The applicant has claimed the default on part of the Respondent for the amount of Rs. 27,00,000 (Rupees Twenty-Seven Lakhs). However, the Corporate Debtor has raised a counter-claim of greater amount on the basis of deficiency of services by the Operational Creditor itself. Further, the Operational Creditor has himself admitted that the Corporate Debtor was duly clearing the dues and honoring various invoices till 2018. About 2018 onwards, the work allegedly came to halt or became delayed and it was only around that time that as a result of non-delivery of drawings by the Operational Creditor, the Corporate Debtor defaulted in the payment of invoice number 27 dated 24.10.2018, invoice no. 28 dated 28.03.2018 amounting to 6,30,000, invoice number 24R1 dated 28.03.2018 amounting to 3,90,000, invoice no. 25R1 dated 28.03.2018 amounting to 6,80,000 and invoice no. 26 dated 28.03.2018 amounting to 250000. This clearly indicates that the default by the Corporate Debtor in payment of these later invoices occurred when the dispute regarding non-delivery of drawings/services by the Operational Creditor arose and lends credence to the claim of the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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