TaxTMI 
TaxTMI 
2019 (7) TMI 1252
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....Fifty Five Thousand Six Hundred and Forty Six Only) along with interest at the rate of 18% per annum w.e.f. 26.12.2014. 2. LA. No.72 of 2018 is filed by M/s. Nitesh Estates Limited (Corporate Debtor) U/s 8 of Arbitration and Conciliation Act, 1996 by inter alia seeking to refer the matter for arbitration, as per clause 5 of Letter of Acceptance dated 19.03.2008, and consequently dismiss the main Company petition etc., and this IA was allowed by the Tribunal vide order dated 25th July, 2018. Subsequently, it was questioned before the Hon'ble High Court of Karnataka by M/s. Simplex Infrastructures Limited vide W.P. No.46547 of 2018. The W.P. was disposed by an order dated 12th April, 2019 by setting aside the impugned order with a direction to the Tribunal to decide the above IA. No.72 of 2018 as well as the main C.P, after hearing both the parties, expeditiously, preferably within a period of six weeks from the date of order. 3. Brief facts of the case, as mentioned in the Company petition and also obtained from the documents, with reference to the issue in question, are as follows: (1) M/s. Simplex Infrastructures Limited ('Petitioner/Operational Creditor'....
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.... 7. Retention is not applicable in the contract Sl No. Debit Note Ref. No., DateAnd Amount Description Status 1 NRHPL/RCH/765/13-14 dtd.02.12.2013 Rs. 4,18,50,000/- Loss due to 93 wet rooms Null & void as it is not tenable as per contract. MOM dtd.12.06.2014 and letter ref. NRHPL/RCH/ 1089/14-15 dtd.14.08.2014 2 NRHPL/RCH/869/13-14 dtd.13.01.2014 Rs. 27,000/- Incomplete civil works at B1 Debited to contract in the final bill 3 NRHPL/RCH/965/14-15 dtd.07.05.2014 Rs. 12,49,115/- Defects in RCC beams Debited to contractor in the final bill DLKPK recommended Amount as on 31.10.2014 Rs. 98,54,97,854/- includes Column guard installation and basement 2 groove cutting works for a value of Rs. 10 lakhs + Service Tax. (5) When the Operational Creditor failed to pay the said outstanding amount, the Financial Creditor finally got issued a Demand Notice dated 28.09.2017 to the Corporate Debtor by inter alia demanding to pay a sum of Rs. 6,03,55,646/- along with interest. The Respondent vide its reply dated 02.12.2017 has disputed the amount by raising several disputes with regard to the works executed, p....
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....96. (2) The Arbitration Clause has been invoked after the issuance of the Demand Notice u/s 9 of IBC, 2016; dispute raised is not bona fide and is moonshine to evade liability. (3) The Corporate Debtor did not raise any objections to the Final payment Certificate dated 31.10.2014, which was issued after taking into account all debit notes from the Corporate Debtor and did not reply to the legal notices issued by the Operational Creditor between 2014 and 2016 and did not raise any dispute regarding the amount mentioned in the Final Certificate dated 31.10.2014. (4) It is also stated that financial statement of Corporate Debtor for the year ending March 2016 unequivocally denotes that Corporate Debtor incurred a loss of Rs. 21,36,27,020/- in the said financial year. The Corporate Debtor also incurred current liabilities around Rs. 914,18,60,698/- and non-current liabilities amounting to Rs. 1,33,82,972/-. Therefore, the Corporate Debtor is not commercially solvent. As per the Letter of Acceptance dated 19.03.2018, construction of "The Ritz Carlton Hotel" at Bangalore was completed, and it has been operational since 2013. As per the Final Payment Certificate....
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.... the demand notice/invoice demanding payment in respect of unpaid operational debt due from M/s Nitesh Estates Limited under section 8 of the Insolvency and Bankruptcy Code, 2016 read with the relevant provisions of the Companies Act read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Sir, We are in receipt of your letter dated 28.09.2017, received by us on 06.10.2017 given under the provisions of the Insolvency Code, 2016. Since the issues raised in your notice need to be discussed between us keeping in view of our longstanding relationship, please confirm the time and further details for the said discussion at your convenience for arriving at a mutual settlement amicable to both sides." 8. The Learned Counsel further another reply dated 02.12.2017 was issued on behalf of Nitesh Residency Hotels (P) Ltd., by inter alia contending their claim in question was barred by limitation; demanding to withdraw the Demand Notice/Invoice dated 28.09.2017; and claim was disputed by appointing Shri Suraj S. Manjeshwar as sole Arbitrator to adjudicate and recovery of the amounts in question and also called upon the ....
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....ted 28.09.2017 was issued followed by another notice dated 22.10.2017. It is a clear case of dispute and the alleged default in question arise out of Final Payment Certificate dated 31.10.2014, and by admitting the dispute, Operational Creditor has also consented to refer the matter for Arbitration. Therefore, it is contended that CIRP cannot be initiated for disputed debt and defaulted under the Code. Hence, it is prayed that the Company Petition is to be dismissed as not maintainable and I.A. No.72 of 2018 is to be allowed to adjudicate the issue duly following the principles of natural justice. 11. As stated supra, this Tribunal, after considering the parties and the pleadings, has passed an Order dated 25.07.2018 in IA. No.72 of 2018 by referring the parties to Arbitration in pursuant to Clause 5 of the Letter of Acceptance dated 19.03.2008, etc., by granting liberty to the parties to take appropriate legal course of action in accordance with law. However, the said order was questioned before the Hon'ble High Court of Karnataka in W.P. No.46547 of 2018 (GM-RES). Ultimately, the Hon'ble High Court of Karnataka has set aside the impugned order dated 25.07.2018, by inte....
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....#39;Outstanding amount'), together with interest thereon @ 18% p.a. from the due date. As per the clause 14.7(c) of General Conditions of Contract, the amount credited in the Final Payment Certificate dated 31.10.2014, was to be paid within 56 days after the employer/first of the Corporate Debtor receive the payment certificate. 14. It is further contended that the Operational Creditor corresponded with the Corporate Debtor on several times between the years 2014 to 2016. However, the Corporate Debtor failed to respond. Therefore, the impugned Demand Notice dated 28.09.2017 was issued for the amounts, which is stated to be due in year, 2014. Therefore, it is not in dispute that the debt and default in question relates to the year 2017 when the Demand Notice was issued. Moreover, the amount claimed by the Petitioner is not only disputed by the Respondent vide its reply dated 28.10.2017 (Page 759) and another reply dated 02.12.2017 as mentioned supra but the matter was also admittedly referred to the Arbitration and the same is stated to be pending Adjudication. Therefore, the Petition is not only barred by limitation and it also come under the definition of 'dispute' ....