TaxTMI 
TaxTMI 
2021 (7) TMI 109
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....ter called the Impugned Order) of the Adjudicating Authority (National Company Law Tribunal, New Delhi) in CP (IB) No. 615 (ND)/2018, which was filed by the Respondent Quazar Infrastructure Pvt. Ltd., an Operational Creditor. 2. The Adjudicating Authority has admitted the application filed by the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code (hereinafter called the IBC) through the Impugned Order while rejecting the contention of the Corporate Debtor that there was a pre-existing dispute between the Appellant and Respondent No.1. 3. The brief facts of the case as presented and argued by the Appellant is that by virtue of an agreement dated January 18, 2013 between the Corporate Debtor and the Operational Creditor, which commenced on January 15, 2013, a works contract was awarded to the Operational Creditor for carrying out civil work for construction of office building for a total contract value of Rs. 5,32,74,331 by the Corporate Debtor. This project was to be completed within nine months, by October 14, 2013. The Appellant has claimed that, in addition to the original works contract, the Corporate Debtor awarded additional work relating to fire-figh....
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....e Debtor stating that the said letters are an afterthought and were not given to Respondent No. 1 by the Corporate Debtor. He has stated that the Corporate Debtor has at no place mentioned these letters or having given these letters to the Operational Creditor regarding the disputed issues, whether in reply to the demand notice dated 23.3.2018 under section 8 of IBC or in his reply to the Section 9 application. A perusal of the documents submitted by the Appellant and Respondent No. 1 in the Appeal, which includes the reply to the demand notice dated 23.3.21 (attached at pages 57-64 of the Appeal Paperbook, Vol. I) given by the Appellant-Corporate Debtor under Section 8 of the IBC, and also his reply to the Section 9 application(attached at pages 103-199 of Appeal Paperbook, Vol. I) submitted by the Corporate Debtor, makes it abundantly clear that these two letters claimed by the Appellant as evidence of pre-existing dispute are not mentioned in either of the two replies of the Corporate Debtor. 7. It would be useful to refer to Section 8 of the IBC regarding conditions for admission of Section 9 application:- "8. Insolvency resolution by operational creditor - (1) An operatio....
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....assertion of fact unsupported by evidence". The adjudicating authority has been enjoined with the responsibility to see that "the dispute truly exists and is not spurious, hypothetical or illusory". Since there is no corroboration of the two letters dated 14.10. 2014 and 18.1.2016 either in the Corporate Debtor's reply to Section 8 demand notice or in the Corporate Debtor's reply to Section 9 application, and rebuttal of these letters by Respondent No. 1 calling them an afterthought, we are unable to be persuaded by the argument of the Corporate Debtor about pre-existence of dispute on the basis of these letters. 9. The Learned Counsel for Appellant has argued about various items of dispute, citing that the running account bills (RA bills) that have been submitted by the Operational Creditor in many volumes were not allowed to be permitted to be placed on record by the Adjudicating Authority. In his arguments, the Ld. Counsel of Appellant has referred to clauses 57, 58, 59 and 61 of the Contract Agreement to show that the RA bills were not submitted by the operational creditor after joint measurements and, therefore, in the absence of such measurements, the bills are not liable to....
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....be examined and any deficiencies ought to be removed. The joint measurement, as per clause 57 of the contract agreement, is therefore something that should have been undertaken by the corporate debtor leading to final payment of these RA bills. This does not seem to have been done, and therefore the responsibility of the Corporate Debtor for verification of the bills cannot be shifted on the Operational Creditor. On the basis of this discussion, we find that the debt that has been included in the Section 8 notice by the Operational Creditor is due and payable. 12. The Learned Counsel for Appellant has mentioned that in accordance with an MOU entered between the Corporate Debtor and Ramprastha Promoters and Developers Private Limited an amount of Rs. 1,70,00,000 (Rupees One Crore and Seventy Lakhs only) was paid to Respondent No. 1 on behalf of the Appellant Corporate Debtor in terms of the MOU. In this connection, the Learned Counsel for Respondent has clarified that the said written confirmation by Ramprastha Promoters and Developers Private Limited was filed by the Corporate Debtor at the time of final arguments and has been denied by the Respondent. He has added that Respondent....
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....the fabrication of an email had been alleged. In the present case two letters of the corporate debtor have been cited as evidence of pre-existence of dispute which do not inspire our confidence as no other corroboration of their existence has been shown by the Appellant. If such letters pre-existed, Corporate Debtor did not refer to them in reply to Section 8 Notice or Reply to Section 9 Application as we have noted earlier in this judgment. Only at the time of final arguments (as claimed by Appellant) they were tendered. Operational Creditor disputes this and Operational Creditor claims they were filed by Corporate Debtor after close of arguments, with Written Submissions, without permission of Adjudicating Authority 17. The following judgments have been cited by Learned Counsel for Respondent: - Mobilox Innovations Private Limited. v. Kirusa Software Private Limited (2018) I SCC 353 Innoventive Industries Ltd. v. ICICI Bank &Anr., (2018) I SCC 407 K. Kishan v. Vijay Nirmal Company, (2018) SCC Online 1013 Sudhir Sales v. D. Art Furnitures MANU/NL/248/2018 YogendraYasupal v. Jigsaw Solutions, (2017) SCC Online NCLAT 293 The ratio in all these judgments support the dictu....