AI Structured Summary
Not yet generated for this judgment
Judgment
(Pursuant to the short order passed on 21.8.2019 in the open court wherein the Petition was dismissed and detailed order to follow)
The Petition preferred by Operational Creditor (OC) against the Corporate Debtor (CD) seeking for initiation of Corporate Insolvency Resolution
Process (CIRP) under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC,2016).
Part-I of the Application discloses OC as a registered partnership firm. Part-II of the Application details, inter alia, the date of incorporation of the
CD to be 7.7.1995 and that the nominal share capital and the paid up share capital of the CD to be Rs.2750,00,00,000/- and Rs.1998,70,00,510/-
respectively. The registered office of the CD is stated to be as follows:
Bharti Crescent 1,
Nelson Mandela Road,
Vasant Kunj, Phase-2,
New Delhi-70.
It correlates with the master data as filed by the Petitioner as Annexure-A to the Petition. Part-III of the Petition has not proposed any name of the
Interim Resolution Professional (IRP). In Part-IV of the Petition, a total amount of Rs.23,67,243/- along with interest at the rate of 24% per annum is
being claimed. The transaction giving rise to the claim is stated to be based on a work order dated 20.3.2008 for laying of cables on Allahabad - Mau
(Vodafone Duct Swapping route) and for other particulars as contained in the work order. In relation to the work order, it is stated that the same was
completed upto 90% till 2012 however no payment was received. On 22.7.2016, the OC sought for reconciliation with the CD and subsequently a final
bill dated 10.8.2016 was raised for the amount being claimed in this Petition.
A notice of demand dated 8.8.2017 was sent on 16.8.2017 which was duly served upon the CD. Another notice of demand was sent on 7.9.2017
and the same was duly served on the CD on 8.9.2017 and a reply has also been forwarded dated 8.9.2017 In view of non-payment, this Petition
before this Tribunal seeking for initiation of CIRP.
Prima facie, since it was evident to this Tribunal that the work order relate to the year 2008 and the averments disclose the work to have been
completed in the year 2012 according to the Petition, a query was raised as to the maintainability of the Petition, as the Petition has been preferred
only on 18.4.2018 before this Tribunal. Subsequently, it is seen from the records of this Tribunal that in view of non appearance of the Petitioner, the
Petition was dismissed for non prosecution on 28.1.2019 and under the circumstances stated in order dated 12.3.2019, the Petition was restored and
pursuant to the order dated 28,5.2019, this Tribunal directed the CD to appear on 17.7.2019. Ld. Counsel for the CD vehemently contended that this
Petition per se is not maintainable and should be dismissed at the threshold and taking into consideration the prima facie facts, CD was directed to file
preliminary objections in relation to the maintainability of the Petition.
Preliminary reply in view of the directions passed by this Tribunal on 17,7.2019 has also been filed. Parties were heard in detail and at length. Ld.
Counsel for the CD during the submissions made brings to the notice of this Tribunal that no work was done as contemplated under the work order
annexed as Annexure 'C' to the Petition dated 20.3.2008. It was also contended by Ld. Counsel for the CD that if the work had been completed by
the Petitioner in the year 2012 itself, as to why till now no running bills, as contemplated under the payment terms and as agreed to between the
parties, have been raised for the work order dated 20.03.2008. Further, even though a final bill has been raised and the documents which are required
to be annexed as per para 8 (a) to (h) of the work order have also not been annexed and further if any such running bills have been raised, the same
have not been annexed. It is also pointed out that no running bills have been raised at different stages, save the final bill raised in the year 2016,
obviously done by the Petitioner to bring it within the ambit of 'limitation' of three years. It has also been pointed out that a detailed reply has also been
sent to the Notice of Demand of the Petitioner denying the liability of the CD on the ground that no work has been done and there has been no
acknowledgement of any liability on the part of CD.
Ld. Counsel for the Petitioner seeks to rely on an e-mail exchanged between the parties dated 22.2.2013 and has enclosed an additional affidavit
filed by the OC. However, perusal of the said e-mail does not disclose any acknowledgement as alleged to have been issued by the CD in relation to
the debt. Reply to the notice sent along with the demand notice as well as preliminary reply filed to the Petition by the CD clearly discloses that in
addition to the claim being barred by limitation and even if the claim is sustainable, is also vehemently disputed which is not sham or illusory. More so,
having averred that the Petitioner completed the work in the year 2012, what prevented the Petitioner from claiming the amount as rightly pointed out
by Ld. Counsel for the CD as per the terms and conditions of the work order of the year 2008 where the bills were required to be raised at each stage
on completion of work be at 50%, 30%,10% and after defect liability period of 1 year the remaining 10%. It is further seen from the averment in the
Petition that the final bill, itself raised in the year 2016, is for the work which stood completed in the year 2012 according to the Petitioner, which in
itself shows that the claim is barred by limitation and there is no basis for making the claim after considerable lapse of time.
In this connection, reference ,to the judgement of Hon'ble Supreme Court rendered in B.K. Educational Services Private Limited vs. Parag Gupta
and Associates C.A.No.23988/2017 to the effect that the expression ""debt due"" in the definitions section of the IBC,2016 would obviously refer to
debts that are ""due and payable"" in law, i.e. the debts that are not time barred.
Taking into consideration all the above, we are constrained to dismiss this Petition and having preferred this frivolous and vexatious claim, a cost of
Rs.1.00 lakh is also imposed upon the Petitioner to be remitted to the CD with a view to defray the cost and expenses in defending its cause before
this Tribunal. Let the cost be paid within a period of 2 weeks from the date of this order .