Brick2wall Infratech Private Limited vs Kashyapi Infrastructure Private Limited

PER: MANNI SANKARIAH SHANMUGA SUNDARAM, MEMBER (J)

This instant application was filed by Brick2wall Infra Tech Private Limited (hereinafter referred as ‘Applicant’/ ‘Operational Creditor’), having Regd. Office at : H No 2036 Street No 160, Trinagar, New Delhi, Delhi, India, 110035 under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity ‘the Code’) with a prayer to initiate Corporate Insolvency Resolution Process in respect of M/s. Kashyapi Infrastructure Private Limited (hereinafter referred as ‘Respondent’ or ‘Corporate Debtor’) for defaulting the payment of total Rs. 2,34,83,915/(Rupees Two crores thirty four lakhs eighty-three thousand nine hundred and fifteen only) comprising of Principal Amount of Rs. 2,29,09,248/- (Rupees two crores twenty nine lakhs nine thousand two hundred and forty eight only) along with an interest amount of Rs. 574,666/- (Rupees Five Lakhs Seventy-Four Thousand Six Hundred and Sixty-Six only) robe paid by the Corporate Debtor.

The Respondent M/s. Kashyapi Infrastructure Private Limited CIN: U45400DL2008PTC177060, incorporated on 23/04/2008 under the provisions of the Companies Act, 1956, is having its registered office situated at : 8/13 Hospital Road Jangpura Extention, New Delhi, Delhi, India, 110014. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code.

Briefly stated the facts of the present case as averred by the Applicant/ Operational Creditor are: -

a. The Operational Creditor, Brick2wall Infratech Private Limited, supplied TMT steel rods/bars of various grades and specifications to the Corporate Debtor pursuant to Purchase Order dated 31.03.2025 bearing Ref. No. KIPL/DSCL/DEHRADUN/PO/6677R/2025 and Purchase Order dated 31.03.2025 bearing Ref. No. KIPL/BHU/GH/VARANASI/6678R2/2025 issued by the Corporate Debtor.

b. The Corporate Debtor placed the aforesaid Purchase Orders upon the Operational Creditor for supply of goods aggregating to Rs. 2,31,37,145/-, comprising Rs. 1,73,43,640/- and Rs. 57,93,505/-respectively, inclusive of applicable GST @ 18%.

c. Pursuant to the aforesaid Purchase Orders, the Operational Creditor duly supplied and delivered the goods at the designated project sites of the Corporate Debtor, namely, the Integrated Office Complex, Green Building at Haridwar Road, Uttarakhand State Roadways Workshop, Race Course, Dehradun, Uttarakhand, and the 1200-Seater Girls Hostel Project at BHU, Varanasi, Uttar Pradesh, in accordance with the terms of the respective Purchase Orders.

d. In terms of the aforesaid Purchase Orders, the Operational Creditor supplied the goods from time to time and raised various invoices upon the Corporate Debtor. The goods so supplied were duly received and accepted by the Corporate Debtor without any dispute, objection, or demur. Consequently, the amounts due under the following invoices became payable by the Corporate Debtor to the Operational Creditor:

Invoice No. B2WHRINY251685 dated 31.03.2025 – Rs. 29,09,502/-;

e. The Applicant submitted that as per the terms of the Purchase Orders and the invoices raised thereunder, the amounts became due and payable upon expiry of 30 days from the date of delivery of the goods. The Corporate Debtor was required to discharge its liability through post-dated cheques (PDCs). In acknowledgment of its undisputed liability and after having accepted the goods supplied under the aforesaid invoices without any objection, dispute, or demur,

f. The Applicant submitted that the Corporate Debtor made a part payment of Rs. 1,26,000/- to the Operational Creditor on 14.04.2025 towards its outstanding liability. The said payment, having been made subsequent to the supply and delivery of goods under the invoices, unequivocally evidences the absence of any pre-existing dispute with respect to the goods supplied or the amounts invoiced.

g. Further, despite having accepted the goods without any objection or demur, the Corporate Debtor failed to honour its contractual obligation to make payment within the stipulated period. Upon repeated follow-ups by the Operational Creditor, the Corporate Debtor issued Cheque No. 015411 dated 11.06.2025 for Rs. 1,00,00,000/- towards part discharge of its outstanding dues. The issuance of the said cheque constitutes a clear acknowledgment of the operational debt due and payable by the Corporate Debtor. The said Cheque was presented to the Bank for clearing but the same returned dishonoured.

h. The Applicant submitted that the subsequent dishonour of the said cheque constitutes a clear acknowledgment of the operational debt and demonstrates the Corporate Debtor's inability to discharge its admitted liability, rather than the existence of any dispute regarding the debt.

j. Consequent upon the dishonour of the cheque issued by the Corporate Debtor, the Operational Creditor issued a statutory demand notice under Section 138 of the Negotiable Instruments Act, 1881. Thereafter, upon the Corporate Debtor's failure to liquidate the outstanding operational debt, the Operational Creditor issued a demand notice dated 23.06.2025 under Section 8 of the Insolvency and Bankruptcy Code, 2016, which was duly served upon the Corporate Debtor.

k. The Applicant submits that the Corporate Debtor, through its counsel, Mr. Sanjeev Agarwal, furnished a reply dated 27.06.2025 to the demand notice dated 23.06.2025, raising certain disputes for the first time. According to the Applicant, the said reply contains vague, unsupported, and afterthought allegations, unaccompanied by any contemporaneous evidence. The Applicant further contends that the alleged disputes are not genuine or pre-existing, as the Corporate Debtor had not only made part payments towards the outstanding invoices and issued Cheque No. 015411 dated 11.06.2025 acknowledging its liability, but had also subsequently placed another Purchase Order dated 16.05.2025 bearing Ref. No. KIPL/DSCL/DEHRADUN/PO/6740/2025 for a sum of Rs. 2,13,46,607/-. The issuance of the subsequent Purchase Order, according to the Applicant, unequivocally demonstrates the continued business relationship between the parties and negates the existence of any bona fide dispute regarding the goods supplied under the earlier Purchase Orders.

Despite ample opportunities been granted, the Respondent has failed to file reply. Accordingly, in the absence of any response from the Respondent, this Adjudicating Authority proceeded to adjudicate the matter on the basis of the pleadings and documents available on record.

We have heard the Ld. Counsel on behalf of the Applicant/Operational Creditor and further perused the averments made in the application. Since, the registered office of the Respondent/ Corporate Debtor is in Delhi, this Adjudicating Authority is having territorial jurisdiction as the Adjudicating Authority in relation to prayer for initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016, against the Corporate Debtor. Further, the present petition is filed within the period of limitation.

That on 24.07.2025, the matter was heard and it was noted that the complete reply to the Section 8 demand notice had not been placed on record, as certain pages were missing. Learned Counsel for the Petitioner sought time to file an appropriate application for bringing the omitted pages on record, and the matter was accordingly adjourned.

On 22.08.2025, the Petitioner filed an affidavit placing on record the missing page of the reply to the Section 8 demand notice, which had inadvertently not been annexed with the petition. Upon perusal of the affidavit and hearing learned counsel for the Petitioner, notice was issued to the Respondent for appearance and filing of its reply.

On 16.02.2026, learned counsel for the Operational Creditor submitted that service upon the Corporate Debtor had been effected through publication in terms of the order dated 29.09.2025 and proof thereof had been placed on record. Learned counsel appearing for the Corporate Debtor sought time to file a reply. Considering that sufficient time had already elapsed since issuance of notice, this Adjudicating Authority granted a final opportunity of one week to the Corporate Debtor to file its reply.

Thereafter, on 16.04.2026, despite the final opportunity granted, no reply had been filed on behalf of the Corporate Debtor.

Subsequently, on 01.06.2026, arguments on behalf of the Applicant were heard. It was noted that notwithstanding repeated opportunities granted by this Adjudicating Authority, the Corporate Debtor had failed to file any reply to the Petition.

From the perusal of the material available on record, it transpires that the ‘Operational Creditor’/ ‘Applicant’ had sent a demand notice dated 23.06.2025 to the ‘Corporate Debtor’ under Section 8 of the Insolvency and Bankruptcy Code, 2016 for payment of outstanding dues worth Rs. 2,34,83,915/-. We observe that this demand notice dated 23.06.2025 under Section 8 was served to the Opposite party and was accordingly received by the Corporate Debtor.

The Respondent replied to the demand notice dated 27.06.2025, alleging that the material supplied under the subject invoices was defective, being rusted, oxidized, non-uniform in length, and not conforming to the specified dimensions. It was contended that these defects were noticed upon unloading at the project sites and were communicated to the Operational Creditor through site officials, including to one Mr. Abhishek Srivastava. The Respondent further stated that, upon the assurance of the Operational Creditor, the material was utilized after segregation and treatment, with an understanding that the invoice value would subsequently be renegotiated to account for the alleged losses. According to the Respondent, as no such adjustment or settlement was finalized, the outstanding amounts remained unpaid.

The Corporate Debtor further stated that it had never denied its liability in respect of the goods supplied and remained willing to resolve the disputes through renegotiation of the invoice value by adjusting the alleged losses arising from the defective material. It was asserted that the outstanding dues would be paid upon determination and settlement of the final payable amount between the parties.

We observe in order to determine the admissibility of petition for initiating CIRP under section 9 of the Code, the judgment of the Hon’ble Supreme Court in Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd., (2018) 1 SCC 353, is to be taken into consideration. The said judgment makes it clear that in order to initiate CIRP proceedings under Section 9 of the Code, the Adjudicating Authority has to determine:

The first instance, to determine whether the impugned amount claimed by the Operational Creditor would fall under the ambit of Operational Debt, it is pertinent to analyze the definition of ‘Operational Debt’ as mentioned under Section 5(21) of The Insolvency and Bankruptcy Code, 2016. Under the said section, ‘Operational Debt’ is defined as:

The debt claimed in the present Petition has arisen on account of the supply of TMT Steel Rods/Bars of various grades and specifications by the Operational Creditor to the Corporate Debtor. The said goods constituted essential input material for the infrastructure projects being undertaken and/or executed by the Corporate Debtor. The amount due towards such supply remains unpaid and is, therefore, in default. The supplies were made pursuant to the following Purchase Orders issued by the Corporate Debtor in favour of the Operational Creditor:

a. Purchase Order dated 31.03.2025 bearing Ref. No. KIPL/DSCL/DEHRADUN/PO/6677R/2025 for a total value of ₹1,73,43,640/-; and

b. Purchase Order dated 31.03.2025 bearing Ref. No. KIPL/BHU/GH/VARANASI/6678R2/2025 for a total value of ₹57,93,505/-.

The Applicant has stated that the contractual terms governing the transactions between the parties, as reflected in the Purchase Orders and invoices, inter alia, provided that: (i) payment was to be made within 30 days from delivery of the material at site; (ii) the agreed rates were inclusive of GST, freight and loading charges, while unloading was to be undertaken by the Corporate Debtor at its own cost; and (iii) the Operational Creditor was entitled to levy interest on delayed payments at the rate of 18% per annum, together with additional interest in terms of the Purchase Orders for delays exceeding 30 days from the due date. The Corporate Debtor expressly acknowledged and accepted the aforesaid interest liability at 18% per annum vide its email dated 30.03.2025 and requested the Operational Creditor to proceed with the supply of goods.

The Corporate Debtor duly acknowledged receipt of the goods and the corresponding invoices by countersigning the delivery documents at the time of supply. The delivery challans and e-way bills further evidence such receipt. The goods were accepted without any protest, objection, or dispute regarding their quantity, quality, weight, rate, or specifications. Further on perusal of the record it is noted that the Corporate Debtor made a part payment of ₹1,26,000/- on 14.04.2025 towards the outstanding dues, thereby unequivocally acknowledging its liability. It is contended by the Applicant that had there been any genuine dispute regarding the supplies or the debt, no such payment would have been made after receipt of the goods.

Moreover, upon the operational debt having become due and payable, the Corporate Debtor issued Cheque No. 015411 dated 11.06.2025 for a sum of ₹1,00,00,000/- towards part discharge of its liability. The said cheque was, however, dishonoured and returned unpaid vide Return Memo dated 12.06.2025.

We have considered the reply filed by the Corporate Debtor to the demand notice issued under Section 8 of the Code. Though the Corporate Debtor has alleged defects in the quality of the goods supplied, no contemporaneous or prior communication evidencing such dispute has been placed on record. The plea of defective goods appears to have been raised for the first time in reply to the demand notice and is unsupported by any material evidence. On the contrary, the Corporate Debtor accepted the goods without protest, made part payment towards the outstanding invoices, and issued a cheque in partial discharge of its liability. Even in its reply, the Corporate Debtor has substantially acknowledged the debt due. These circumstances negate the existence of any genuine pre-existing dispute.

Further, we observe, that the Applicant has placed sufficient material on record to establish the supply of goods, the debt due and payable, and the default committed by the Corporate Debtor. Accordingly, we are satisfied that the claim constitutes an operational debt within the meaning of Section 5(21) of the Code and that no pre-existing dispute exists between the parties. Consequently, the occurrence of default stands established.

In view of the above facts and circumstances, we are of the considered view that the present petition filed by the Operational Creditor fulfils the criteria laid down under the provisions of the Code. The Petitioner has established that the Corporate Debtor is in default of a debt due arising out of services rendered by the operational creditor and the same is payable. Further, that the default amount is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. In the light of the above facts and circumstances, it is, hereby ordered as follows: