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Judgment
I.A. No. 2931 of 2023. This is an application filed by the Appellant with a prayer to condone the delay of three days in filing the Appeal. Sufficient cause has been shown. Delay is condoned.
I.A. No. 2884 of 2023. This is an application filed by the appellant praying for condonation of 61 days delay in refiling of the Appeal. Sufficient cause has been shown. Delay is condoned.
Heard Learned Counsel for the Appellant.
This Appeal has been filed against the Order dated 24th February, 2023 by which order the Adjudicating Authority has rejected Section 9 Application of I&B Code, 2016 filed by the Appellant.
Operational Creditor has filed the Application on the strength of the sub-contract awarded for supply, fabrication and erection of structural steel work for design and building Mahatma Gandhi International Conference Centre Project at Niamey Niger.
Demand Notice was issued on 01st February, 2021. Corporate Debtor replied to the Demand Notice denying its liability to pay instead corporate debtor has made a counter claim raising issue in quality material issue and procurement etc. The Adjudicating Authority considering the submission of the parties rejected the Section 9 Application finding existence of prior dispute.
Learned Counsel for the Appellant submitted that the dispute which was raised was earlier resolved. He has referred to paragraph 5 of the Judgment.
In paragraph 5 of the Judgment, following has been observed:
“5. The Ld. Counsel for the Applicant/Operational Creditor further drew our attention to email dated October 15, 2019 written by the employee of the Corporate Debtor to the Employee of Applicant stating that “please go ahead and help Ms. Jeena to get the material back from custom. We assured you that you will get the payment for this material” and also drew our attention to the WhatsApp chats wherein the Corporate Debtor has pleaded cash crunch in the project.”
The Adjudicating Authority in paragraph 7 has noticed the Reply to the Demand Notice which was given by the Corporate Debtor where Corporate Debtor has refuted the claim as totally unrealistic and far from the facts and having no logic which cannot be entertained. In paragraph 7, following observation has been made by the Adjudicating Authority:
“7. On perusal of reply to the demand notice dated 22nd February, 2021, the Corporate Debtor has referred to an email dated 9th September, 2020 wherein the Operational Creditor has submitted that ‘we have not made any unrealistic claim as stated from your end. In this regard, we shall have discussion and shall provide all necessary supporting and logical justification of our claim.” This email was in response to an email of even date written an employee of the Corporate Debtor stating that “we have gone through your mail and found your ‘proposed claims’ totally unrealistic and far from the facts and having no logic which cannot be entertained. However based on the placed order and the work executed we are attaching herewith the settlement statement for further discussion and mutual agreement to conclude the matter.” The Applicant in his rejoinder has submitted that the settlement was not accepted as was not recorded in the work order and it cannot lead to conclusion that there existed a prior dispute. As regards defect in quality of work and material supplied, the Applicant has submitted these were rectified as earlier pointed out.”
The demand notice was replied and refuted by Corporate Debtor citing the dispute in the claim of the Appellant. An earlier email dated 09th September, 2020 was replied by the Corporate Debtor refuting the claim.
There was existence of dispute between the parties and the Adjudicating Authority did not commit any error in rejecting Section 9 Application on the ground of pre-existing dispute. The Appeal is dismissed. We however observe that this shall not preclude the Appellant to take any appropriate proceedings as per the contract between the parties.