TaxTMI 
TaxTMI 
2020 (9) TMI 511
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.... Ltd. (hereinafter referred to as 'Corporate Debtor') for the outstanding of amount of Rs. 14,89,966. 2. The brief facts of the case are that the Appellant is engaged in the business of civil works, carrying out structural work for all types of building and water & sewerage treatment plants renovation works besides other civil construction and has catered to a vast and diverse clientele all over India. The Corporate debtor approached the Operational Creditor for availing its services and work orders dated 04.10.2011 and 14.10.2013 were issued for Rs. 47,50,000/- and Rs. 2,07,00,000/- respectively. The averments were made by the operational creditor that it raised invoices and maintained a running account with the corporate debtor. Partial payments were received from the corporate debtor from time to time and post adjustment operational creditor is claiming that there is an outstanding liability of Rs. 14,89,967/- including retention amount of Rs. 6,74,247/- from the corporate debtor. 3. The Operational Creditor contended that the main issue arrived from the mutual settlement letter dated 07.10.2015. Below 5 bills, which are subject matter of settlement letter dated 07.10.2....
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.... i. "....last payment against 5th and final bill for STP work and accepted for a full and final value for Rs. 1,21,73,542/- exclusive of VAT, Service Tax, as applicable (subject to the receiving of final payment against CURRENT BILL) ...." ii. "....We further confirm that we will not raise any claim at any time ion future against the company for all the works carried out by us at "Hotel the Lalit, New Delhi-1" EXCEPT RETENTION MONEY AMOUNT (IF DEDUCED)...." 8. It is also submitted by the operational creditor that the impugned order passed by Adjudicating Authority on 30.01.2020 has not been communicated or served upon the operational creditor, but the same was observed and downloaded from the web page of NCLT, Delhi on 02.03.2020. Thus there has been a delay of 13 days caused in filling the present appeal. For this an application U/S 5 of the Limitation Act seeking condonation of delay under I.A No. 1388 of 2020 is filled before this Appellate Tribunal. 9. The Respondent filled its reply and contended that the operational creditor has not disclosed any patent illegality/perversity/misconduct to set aside the Impugned Judgment wherein the Adjudicating Authority he....
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.... clause 4 of the Work Order. All other bills have been paid including 5th and final bill after adjusting mobilization, recoveries, etc. 13. It is also stated by the counsel for the corporate debtor that the Adjudicating Authority has gone through the correspondence and in Para 5 of the Judgment held that there is intimation of the retention money i.e. Rs. 6,74,247/- to the operational creditor and communication of 23.01.2016 of the operational creditor herein states about Operational Creditor having its knowledge. In Para 6 of the Judgment the Adjudicating Authority has considered the full and final settlement letter dated 07.10.2015 under which the operational creditor chose not to take recourse to Arbitration, if any claims/disputes were pending in terms of the Arbitration Clause stipulated in the Work Order, or any other legal proceedings. 14. It is further contended on behalf of the corporate debtor that the interim order dated 30.04.2019 would reflect that the alleged running of the operational creditor was never reconciled and the parties were not in agreement over the accounts. The operational creditor (without prejudice) to put quietus offered to pay the retention amo....
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....e to a recovery forum and whenever there is existence of real dispute, the IBC provisions cannot be invoked." 19. The definition of the word dispute provided under the code was well elaborated and explained by Hon'ble Supreme, in the case of re. Mobilox Innovation Pvt. Ltd. vs. Kirusa Software Pvt. Ltd in the following words: That vide Para 40 of the judgment - "It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under S.9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate th....