TaxTMI 
TaxTMI 
2020 (10) TMI 383
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....ermitting the Petitioner to withdraw the Petition by granting liberty to the Petitioner file the same before appropriate Bench of NCLT. Accordingly, the case is filed before this Bench, and it is renumbered as C.P. (IB) No. 395/BB/2019. 3. Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, are as follows: (1) M/s. Green Land (herein after referred to as Petitioner/Operational Creditor) is a sole proprietorship concern carrying on landscaping, gardening and other works including building contracts and works of development of the infra-structure projects. (2) M/s. Ebaco India Pvt. Ltd. (herein after referred to as Respondent/Corporate Debtor) was incorporated under the Companies Act, 1956, bearing CIN: U51504KA1994PTC016 225. Its Authorized Share Capital of the Company is Rs. 2,00,00,000/- (Rupees Two Crores only) and Paid-up Capital of Rs. 1,51,89,000/- (Rupees One Crore Fifty One Lakhs Eighty Nine Thousand only). The main object of the Company is carrying on work of soccer ground sub base for the American School at Bandra Curia Complex, Mumbai. (3) It is stated that the Respondent/Corporate Debto....
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....iness including all constitutes to a sum of Rs. 21,44,588.41/- and the same is payable to the Petitioner/Operational Creditor by the Corporate Debtor. (6) It is further stated that the Petitioner/Operational Creditor have completed the work of construction of particulars works of the Corporate Debtor and have raised bills for the various works done and also issued Statutory Demand Notice to the Respondent/Corporate Debtor on 15th May, 2018 by inter-alia demanding to make payment in respect of the unpaid operational debt. The Respondent/Corporate Debtor has given reply to the said notice on 08th June, 2018 and they have not given a clear answer to the Demand Notice. (7) Therefore, the Petitioner urged the Adjudication Authority to initiate CIRP against the Corporate Debtor as prayed for. 4. The Respondent/Corporate Debtor has filed Statement of Objections dated 21.01.2020, by inter-alia contending as follows: (1) It is Respondent has strongly objected the contention that the Petitioner has completed the work, as per the work order dated 12.06.2015, and asserted that other extra work was not out carried by the Petitioner. The Bill dated 24.10.2015 of the....
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....as briefly stated supra, has further submitted that though the Petitioner, by email dated 29th March, 2018, has agreed to settle the due for an amount of Rs. 6,70,167/-, it was agreed due long standing business relationship and also subject to transfer the said amount their Account before 31st March, 2018. It was agreed due to daughter's marriage of Chief Executive officer namely Rajeev Rajkondawar. It was conditional acceptance. Therefore, since the Petitioner is failed to pay the agreed amount, the Petitioner has filed instant Petition. She has denied the allegations made by the Respondent with respect to work done. She has urged the Adjudicating Authority to initiate CIRP as prayed for. 7. Shri S. Gangadhar Gowda, learned Counsel for the Respondent has strongly opposed the maintainability of the Petition on the ground that the Petitioner, on one hand accepted to settle the issue, and on the other hand has filed instant Petition by raising frivolously grounds and invoking provisions of Code is nothing but to convert it into recovery form. 8. By perusal of the documents filed along with the Company Petition, it is noticed that the Petitioner and the Respondent has earlie....
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....t expressed their willingness to settle the issue, provided the Petitioner to submit their claim with substantial evidence. Therefore, it would be just and proper to leave the matter to the parties first try to settle the claim wherein the Petitioner can its claim with all supporting evidence to the Respondent so as to consider the same as per merits. 11. It is settled position of law that the provisions of Code cannot be invoked for recovery of outstanding alleged amount(s). The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, (2018) 1 SCC 353 has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. In another latest judgment rendered in Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd., (CA No. 9597 of 2018) dated 23rd October, 2018, 2018, (2018) 147 CLA 112 (SC) Supreme Court of India, it is inter alia held that existence of undisputed debt is sine qua non of initiating CIRP. As per para 34 of judgment, it is stated that Adjudicating Authority, while examining an application filed under Section 9 of the Code, will have to determine: a) Whethe....