TaxTMI 
TaxTMI 
2018 (4) TMI 350
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....m of Rs. 11.00 lakhs arising due to non-payment of an advance which was required to be paid by the Corporate Debtor in relation to the contract entered into between the parties for the construction of CKG Xpress walk at Rudrapur - Structural Works for a contract value of Rs. 7,41,35,813.32. It is claimed by the Operational Creditor that as per the said agreement entered into between the parties, a sum of Rs. 11.00 lakhs was required to be paid as mobilization advance prior to the commencement of actual work in order to enable the Operational Creditor to mobilize machinery and equipments at the construction site as the nature of work is that civil construction contract. The Operational Creditor also claims that on 13.7.2017 based on the minutes of the meeting held between the Operational Creditor and the Corporate Debtor, a sum of Rs. 21.00 lakhs was demanded to be paid as an advance inclusive of Rs. 11.00 lakhs, as detailed above by the Operational Creditor and the Corporate Debtor also acceded to the said request. However, despite the same as no payment was forthcoming from and on the part of the Corporate Debtor, Operational Creditor issued a demand notice as required under Secti....
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.... ready for concreting, it is claimed by the Corporate Debtor that onus of paying mobilization advance does not arise as the site was for sometime flooded with water and hence required de-watering. 4. The Petitioner was given an opportunity to file rejoinder both in relation to reply as well as for additional reply as filed by the Corporate Debtor and which opportunity has also been availed by the Petitioner by filing rejoinder and additional rejoinder wherein several emails alleged to have been exchanged between the parties with a view to establish that the site was ready for concreting and that mobilization of equipments and materials had taken place and that costs have also been incurred in relation to the same and certain bills have also been raised by the third parties against the Operational Creditor for transporting equipments have been annexed in order to sustain the claim that mobilization had commenced but advance was not forthcoming. 5. After due completion of pleadings on the part of the parties, the matter was heard by this Tribunal finally on 16.01.2018. Ld. Counsel for the Petitioner reiterated the submissions made in the Petition as well as rejoinder and pointe....
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.... on the part of the Corporate Debtor as agreed to and entered into between the parties and in the circumstances this is not the proper forum to agitate the said claims and the parties should instead be relegated to the Civil Court in order to thrash out their dispute as this forum it is contended primarily being a forum of summary jurisdiction. 7. Both sides were heard in detail. It is seen from the record as filed by the parties and considering the pleadings and records filed that the parties have entered into an agreement which is primarily in relation to civil construction works wherein the Operational Creditor was to do plain concrete work at site. The contract it is seen was entered into on 10.06.2017 and further an addendum has also been agreed to between the parties both of which have been filed as Annexure A-2 to the application. The total value of contract in consideration of the construction, execution, completion and maintenance of the works has been fixed approx. at Rs. 7,41,35,813.32 excluding service tax, WCT and labour cess. The addendum annexed with the agreement dated 10.6.2017 by virtue of clause 6 reads as follows: KLA will be paid an amount of Rs. 11....
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....ent of mobilization advance will give rise to a claim and thereby fall within the definition of Section 5(21) of IBC,2016 and whether the Petitioner can be treated as such a Operational Creditor. From the facts averred by the parties it is seen that construction work is a composite contract involving supply of material as well as rendering works at the site. Neither of the two has commenced on the part of the Operational Creditor to sustain the claim of advance payment based on the non-payment of which the Operational Creditor has issued notice as envisaged under Section 8 of IBC,2016. From Annexure A-1 and Annexure A-2 filed vide Diary No. 2262 dated 11.10.2017, it is seen that the claim in a sum of Rs. 2880837.30 by way of first and final bill dated 4.9.2017 has been raised as against the Corporate Debtor where as Section 8 notice under the provisions of IBC,2016 has been issued subsequent to that date (i.e.) on 12.9.2017 in which the amount as above in a sum of Rs. 2880837.30 has not been claimed against the Corporate Debtor and it is for the Petitioner to explain the same. There is a paradox in the contention and claim of the Operational Creditor/Petitioner. Non-payment of adva....