Techno Power vs Westinghouse Saxby Farmer Limited

20.09.2022: Heard Learned Counsel for the Appellant.

This Appeal has been filed against the Order dated 19.07.2022 passed by the National Company Law Tribunal, Kolkata Bench-I, Kolkata. By which Order, the Adjudicating Authority has rejected the Section 9 Application filed by the Appellant under Insolvency and Bankruptcy Code, 2016 (IBC in short).

Appellant-Operational Creditor was issued two work order from the Corporate Debtor on 20^th October, 2017 and 13^th November, 2017. Operational Creditor in pursuance of the work order, executed the work and thereafter, wrote several letters for payment. Certain part payments were made by the Corporate Debtor from time to time. The Appellant issued Section 8 Demand Notice in reply to which he was informed to give particulars of completion of work. Thereafter, Section 9 Application was filed which has been rejected.

The Adjudicating Authority after hearing the parties came to the conclusion that work was not complete and some part payments were made which was accepted by the Operational Creditor giving credence to the case of the Corporate Debtor that work was not complete.

Learned Counsel for the Appellant challenging the Impugned Order contends that work was completed and several emails and letters were sent for issuance of completion of work certificate which was not given by the Corporate Debtor.

In the work order, which was issued to the Appellant, clause 9.0 deals with the payment. When we look into clause 9.0 page 193 of the Appeal Paper Book, the payment is hedged with certain conditions to be fulfilled. Appellant himself has annexed several invoices containing the orders for part payments. The invoices contained directions of the officials of the Corporate Debtor for part payment indicating that part payment is made against shifting of the items. There is no dispute that work completion certificate has not been given to the Appellant although Appellant submits that he has intimated the Corporate Debtor that he has completed the work and certificate of completion of work be issued. The Adjudicating Authority after considering the submissions of Appellant, is of the view that Appellant was not entitled for the payment since work was not complete. In Section 9 Application, the factual issues regarding the entitlement of payment are not to be gone into, since proceedings under Section 9 are not recovery proceeding for recovery of the dues of the Operational Creditor. When Corporate Debtor in his reply has come with the case that work was not completed as per the work order and the Adjudicating Authority has accepted the said defense, we see no reason to interfere with the Order of the Adjudicating Authority rejecting Section 9 Application. We further observe that it shall be open for the Appellant to take such remedy as permissible for recovery of dues, if any, in accordance with law.

With these observations, the Appeal is dismissed.