TaxTMI 
TaxTMI 
2020 (1) TMI 1289
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....rd of Directors. The amended Memo of Parties was filed by Diary No. 3991 dated 15.10.2018. Accordingly, CA No. 939/2019 stands disposed off. CP (IB) No. 295/Chd/Pb/2018 2. The instant petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, (for short hereinafter referred to as 'Code') read with Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for short hereinafter referred to as 'Rules') by M/s. Ria Constructions Limited (Operational Creditor) for initiating Corporate Insolvency Resolution Process (CIRP) in the case of Blessing Resorts Private Limited (Corporate Debtor). The Identification Number of the operational creditor as mentioned in Part-I of Form-5, is U45200CH2005PLC027850 and the address of its registered office is SCO 176, First Floor, Sector-5, Panchkula, Haryana. The petitioner-operational creditor has authorized Mr. Sanjeev Azad, Director to file petition on its behalf. The copy of the Resolution passed by the Board of Directors of the company is annexed as Annexure P-3 (Colly). There is also an affidavit in support of the contents of the application which is at Page 20-21. The applic....
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....itor on the basis of the abstract of cost signed from time to time. It is further submitted that the memorandum of payment was prepared after reconciliation with the abovesaid abstract of costs wherein all the payments made by Corporate Debtor from time to time under different heads towards the assigned work were taken care of and consequently, an amount of Rs. 4,31,73,446/- was found to be due and payable as on 28.11.2017 vide final bill of main building i.e. RA34, bill of phase-2 i.e. RA6 and combined bill of main building and phase-2 i.e. RA4 including the value of retained Tools & Plants & Machinery. The LOI dated 19.01.2013 is attached as Annexure P-4 and the copy of memorandum of payment of running account, final bills of main building, combined bills of Phase I & Phase II, final summary sheet showing outstanding amount towards corporate debtor is attached as Annexure P-6 (Colly). The amount claimed to be in default as per Part IV of Form I is stated to be Rs. 4,31,73,446/- as on 28.11.2017 alongwith interest @ 18% per annum. 7. A demand notice in Form No. 3 is stated to be issued on 21.02.2018 (Annexure P-13 of the petition). The demand notice was accompanied by the duly ....
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....the corporate debtor was suffering losses. Since the operational creditor was in default of the terms and conditions and had not performed the work in the prescribed period or even as per the prescribed standards, the corporate debtor was constrained to terminate the contract vide letter dated 07.10.2016. Copy of letter of termination dated 07.10.2016 is at Annexure A-3 (Colly). 11. It is also stated in the reply that the memorandum of payment is a fabricated document. It is submitted that the corporate debtor has already made the entire outstanding payment towards the operational creditor up to RA 34 for Phase 01, up to RA-06 for Phase-02 and up to RA-03 for the combine phase, which were the last duly verified and authenticated invoices submitted by the operational creditor. It is also alleged by the corporate debtor that the operational creditor has selectively appended the invoices/e-mails/bank statements in order to create an impression as to the non-existence of a dispute as well as non-payment of amount due as per invoices. The payment was made in three phases, i.e., Phase I, Phase II and combine. The payment of last RA-34 in phase-I was made vide cheque dated 10.05.2016, ....
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....er:- "40. 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 Section 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 the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does 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, hypo....
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....agreed receiving an e-mail with regard to deputing corporate debtor's own team on work and place of the operational creditor's team which was agreed between the parties. 19. The learned counsel for the corporate debtor has pleaded that the copy of the valuer report of the inventory handed over by the operational creditor to the corporate debtor is being placed at Annexure A-4 (Diary No. 1574) in which the realization value of the material inspected turns out to be Rs. 3,06,077/- which is comparatively quite a lesser value as alleged value of Rs. 73,39,540/- in the petition. It is observed that while perusing the record of CA No. 507/2018, Annexure CA/3, there is an e-mail from Mr. Gurpal Panesar on behalf of the corporate debtor being addressed to the operational creditor which is as follows:- "On 2016-10-07 12:33, Mr. Gurpal Panesar wrote: Dear Mr. Dinesh Walia this is to bring under your notice that today as per our meeting at site with MD Mr. Rajan Gill, Mr. Surjit Singh VP, and all Phagwara staff some important decisions were taken. In which we have taken some necessary and important steps in favour of our project because from long while there has b....