TaxTMI 
TaxTMI 
2020 (10) TMI 738
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....agh, Jharkhand. 2. By work orders dated 12.01.2016, 06.04.16 and 08.06.2016, the corporate debtor had assigned the operational creditor the job to complete some civil work at residential colony at the above address/sites. 3. According to the operational creditor, it has satisfactorily completed the assigned job. It has raised against the corporate debtor the final bill of Rs. 5,23,80,198/-. In spite of repeated demands, the corporate debtor failed and neglected to pay the said amount. Hence, on 13.10.2018, he has served upon the corporate debtor demand notice under section 8 of IBC. Corporate Debtor replied the notice raising false contentions about the quality of work carried and refused to pay the amount. The corporate debtor thereby committed default in paying the operational debt. Hence, this proceeding is filed to start CIRP of the corporate debtor. 4. In support of its claim, operational creditor produced on record the copies of work orders, invoices of unpaid claims, demand notice under section 8 of IBC and reply sent to the notice by the corporate debtor. He has also produced some correspondences that has taken place in between him with the corporate debtor in the ....
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....Counsels at the Bar, the following points arise for our determination. We record our findings against them for the reasons stated below. Points and Findings: i) Whether this application is filed by the proprietary firm or proprietor of the firm? Findings - By the Proprietor. ii) Whether the application is defective as has been filed clubbing different causes of action? Findings - No. iii) Whether there exists pre-existing dispute about the work carried by the operational creditor and hence, application is not maintainable. Findings: - Yes. Reasons Point No. (i) - Ld. Counsel for the corporate debtor pointed out Form-V by which the application is filed by the operational creditor. He also pointed out that notice under section 8 of IBC sent to the corporate debtor (page 23 of the application) and submits that notice under section 8 of IBC is sent by the proprietary firm, M/s. Sri Ram Constructions. Even the application under section 9 of IBC is filed by the proprietary firm. According to him, the application filed by the proprietary firm is not maintainable because section 9(1) states that, "After the expiry of 10 days from the date of delive....
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.... by the operational creditor were raised under above three different work orders. He relied on the order of Hon'ble NCLAT in case of International Road Dynamics South Asia Private Ltd. - vs. - Reliance Infrastructure Ltd. (Company Appeal 72 of 2017). He submitted that different claims arising out of different agreements could not be clubbed together. 12.1 As against this, Ld. Counsel for the operational creditor submitted that in an order passed by the Hon'ble Appellate Tribunal, the facts are quite different. There appears to have been three separate agreements in between same parties to that proceeding and the operational debt were arising separately out of three agreements. Hence, the Hon'ble Appellate Tribunal held that those cannot be clubbed together. 12.2 In this case, there is only one letter of award dated 12.01.2016 under which work orders were issued. It is not a case of clubbing of different causes of action. 13. We have gone through the order of the Hon'ble Appellate Tribunal relied on by the Ld. Counsel for the corporate debtor. The Hon'ble Appellate Tribunal, considering the facts in that case, has held that, "We are of the view that diff....
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....es not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 15. Keeping above pronouncement before our sight, we have considered the facts in this case. It is not in dispute that immediately after the receipt of the demand notice dated 13.10.2018, the corporate debtor replied the notice vide letter dated 01.11.2018 and informed the operational creditor that there is serious dispute pending in between them and the operational creditor about the quality of work carried by the operational creditor and also about the amount claimed towards the work carried. The corporate debtor produced on record copies of numerous correspondences in between it and the operational creditor. It is seen from the record that on 16.07.2018, the operational creditor sent the corporate debtor demand notice under section 8 of IBC (Annexure-A, page-16 of Affidavit-in-reply). That notice was replied by the corporate debtor vide letter dated 01.08.2018 (Annexure-B). In the reply, the corporate debtor categorically informed the oper....