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Judgment
Heard Shri Gaurav Mitra, learned counsel for the Appellant. This Appeal has been filed against order dated 07.01.2022 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi (Court No. III) by which the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘Code’) has been rejected.
The Appellant was awarded contract vide Work Order issued on 27.05.2015 by the Corporate Debtor. Invoices were raised by the Appellant and it is case of the Appellant that payment of four invoices was already made. The NCLT, Kolkata initiated CIRP proceeding against the Respondent on 30.03.2017. No claim was filed by the Appellant in the CIRP proceedings and invoice dated 30.09.2017 was issued for an amount of Rs.29,30,296.48 to the Respondent. In pursuance of CIRP proceedings, the Resolution Plan was approved on 18.04.2018.
The Appellant filed the Section 9 application on the basis of two invoices i.e. first invoice dated 30.19.2017 for an amount of Rs.29,30,296.48 and next invoice dated 30.11.2018 for an amount of Rs.15,35,349.20. The Adjudicating Authority has rejected the Section 9 Application observing that there is no cogent evidence filed by the Operational Creditor in order to substantiate its case with respect to the Invoices Nos. 5&6 raised on the basis of work executed by it.
Shri Mitra submitted that the invoice was issued on 30.11.2018 because cause of action only arose after Resolution Plan was approved by the Adjudicating Authority on 18.04.2018 when Respondent wrote to the Appellant and he was asked to complete measurement of work and get it verified by PWD. He submits that because cause of action had arisen subsequent to the completion of CIRP there was no occasion for the Appellant to file a claim in CIRP proceedings.
Learned counsel for the Respondent refuting the submission of Appellant submits that even the contract with the PWD was terminated on 23.03.2018 and in fact there was no work order to carry out any work by the Appellant and Appellant has not filed any claim in the CIRP proceedings. It is submitted that there are disputes which are pending consideration in the Arbitration proceedings under Arbitration and Conciliation Act, 1996.
Mr. Mitra submits that two invoices which are subject matter of the Section 9 Application, they are not part of the Arbitration Proceedings.
We have considered submissions of learned counsels for the parties and perused the record.
From the facts which are on the record, it is clear that for the work which was carried out by the Appellant two invoices, according to the Appellant, were issued on 30.09.2017 and 30.11.2018. In so far as invoice dated 30.09.2017 is concerned, it was dated during which period CIRP proceeding was pending and going on. Appellant having not filed any claim could not have filed Section 9 Application on the basis of said invoice. With regard to invoice dated 30.11.2018 contract of the Respondent was itself terminated on 23.03.2018, there is no question of carrying out work on the site after termination of contract of Corporate Debtor. The submission of the Appellant that cause of action to the Appellant only arose after CIRP proceedings were completed and Resolution Plan was approved does not commend us because the work was carried out prior to 18.04.2018 when the CIRP proceeding was not completed and claim could have been made in the CIRP. We, thus, find no error in the order of the Adjudicating Authority rejecting application under Section 9. There is no merit in the Appeal. The Appel is dismissed.