Appeal dismissed under Section 9 of Insolvency and Bankruptcy Code.

The appeal against the rejection of the Application under Section 9 of the Insolvency and Bankruptcy Code was dismissed. The rejection was based on the existence of a pre-existing dispute regarding debt and default, the claim being time-barred, and the unresolved issue of determining the actual employer. The Adjudicating Authority's decision to reject the Application was upheld, and the appeal was dismissed without any cost orders.

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Issues Involved:
1. Rejection of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC).
2. Existence of a dispute regarding debt and default.
3. Determination of the employer between the Respondent and NRHPL.
4. Time-barred claim.
5. Validity of the Final Payment Certificate.

Issue-wise Detailed Analysis:

1. Rejection of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC):
The Appellant, an original Operational Creditor, filed an appeal against the rejection of its Application under Section 9 of the IBC by the National Company Law Tribunal (NCLT), Bengaluru Bench. The NCLT rejected the Application, citing the existence of a dispute regarding the debt and default and the claim being barred by latches and limitation.

2. Existence of a Dispute Regarding Debt and Default:
The Adjudicating Authority found that there was a pre-existing dispute concerning the debt and default. The Respondent highlighted an email dated 21st January 2016, raising issues about the quality of work done by the Appellant. This email indicated various defects such as leakages and seepages, which were communicated to the Appellant. The Appellant was informed that despite continuous follow-up, there was no response. This evidence supported the existence of a real dispute about the quality of work, justifying the rejection of the Application under Section 9 of the IBC.

3. Determination of the Employer Between the Respondent and NRHPL:
The Appellant claimed that the Respondent (Nitesh Estates Limited) was the employer, whereas the Respondent argued that NRHPL (Nitesh Residency Hotels Private Limited) was the actual employer. Various documents, including the Contract Agreement dated 19th March 2008 and subsequent communications, indicated that NRHPL was involved in the project. The Appellant accepted payments from NRHPL and acknowledged NRHPL's role in issuing the Final Payment Certificate. The Adjudicating Authority concluded that determining the employer required a detailed examination of documents and conduct, which was beyond the scope of summary proceedings under Section 9 of the IBC.

4. Time-barred Claim:
The Appellant's claim was found to be time-barred. The project was completed in 2012, and the hotel was operational since 2013. The Final Payment Certificate was issued on 31st October 2014. The Application under Section 9 was filed on 22nd December 2017, which was beyond the limitation period. The Adjudicating Authority noted that the time for claiming the debt began to run from the completion of the project and the hotel's operational status, making the claim time-barred.

5. Validity of the Final Payment Certificate:
The Appellant relied on the Final Payment Certificate dated 31st October 2014 to claim unpaid dues. However, the Respondent disputed the validity of this certificate, arguing that it was merely a Reconciliation Statement prepared by an engineer and not a binding Final Payment Certificate. The Reconciliation Statement was signed by NRHPL and the Appellant but not by the Respondent. The Adjudicating Authority found that the document did not meet the requirements of a Final Payment Certificate as per the contract terms, further weakening the Appellant's claim.

Conclusion:
The appeal was rejected based on the existence of a pre-existing dispute, the time-barred nature of the claim, and the unresolved issue of the actual employer. The Adjudicating Authority's decision to reject the Application under Section 9 of the IBC was upheld, and the appeal was dismissed with no orders as to costs.

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