TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 719
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....Insolvency Resolution Process ("CIRP") against the Respondent herein i.e., M/S. Shore Dwellings Pvt. Ltd for non-payment of Operational debt. It is submitted that the acknowledged debt has fallen due to the Appellant under a contract with the Respondent dated 14th January 2011 ("Construction Contract") under which the Appellant was to carry out the construction works in the Mantri Pinnacle High Rise Residential Project Development. The works for the project were duly carried out by the Appellant and the Respondent has issued Virtual Completion Certificate on 9th January 2020 certifying Project work completion as on 30th December 2019. The Appellant issued an application for the Final Payment Certificate ("Final Bill") on 9th May 2019 for cumulative gross value of work done of Rs. 104,74,33,943 with net payable amount calculated at Rs. 12,45,89,866. 3. The Learned Counsel for the Appellant further submitted that as per Clause 14.13 of the Construction Contract the Respondent had to certify the Final Bill raised by the Appellant within 56 days of its issuance and issue the Final Payment Certificate bearing the certified bill amount. Further, Under Clause 14.7(c) of the Construction ....
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.... January 2020 confirmed the liability of the debt to the extent of Rs. 6,98,47,408 with a request for revision of payment schedule. In view of the request, the Appellant revised the payment schedule as stated supra and it is clear admission of the Respondent recording the debt due and payable. The Hon'ble Adjudicating Authority after Hearing the Counsel for the Appellant/Applicant, even prior to issuing Notice to the Respondent, passed the Impugned Order dismissing the Application by rejecting the claim of the Appellant. 7. The Learned Counsel further submitted that the Application of the Appellant cannot be rejected on the ground of prior or pending negotiations. Further, the Hon'ble Adjudicating Authority erroneously held that the Appellant was in receipt of a substantial part of the debt. The Learned Counsel submitted that the Application cannot be rejected on the ground that the intent not for Insolvency Resolution, the Hon'ble Adjudicating Authority erroneously held that the Application was premature and in the nature of a debt enforcement proceeding which was impermissible under the Code in light of the decision in Mobilox Innovation Private Limited Vs Kirusa Software Privat....
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....rent process of Law. Therefore, there is no illegality in the Order of the Hon'ble Adjudicating Authority. 11. The Learned Counsel further submitted that the Hon'ble Adjudicating Authority was of the view that IBC was wrongly invoked, instead of simply rejecting the Application and leaving open the choices of recovery to the prudence of the Applicant, it has acted as a Court of equity by allowing the Respondent to pay the dues. This in fact has ensured proper justice to the Appellant since the Hon'ble Adjudicating Authority has not rightly relegated the Applicant to seek remedies before other Forum. By its Order, the Adjudicating Authority has also placed the Respondent on a caution to discharge its liability within a reasonable time so that the dispute is ended. The Learned Counsel further submitted that by granting time to pay the Hon'ble Adjudicating Authority has ensured the Appellant that their right has not taken away. In view of the aforesaid reasons, the Appellant has not made out any case seeking setting aside the Impugned Order and admitting the Application before the Hon'ble Adjudicating Authority. The Appeal is devoid of merits liable to be dismissed. Appraisal/Analys....
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....al Per-se for the reason that the main objects of the IBC is for Resolution of the Corporate Debtor in a time bound manner. The Adjudicating Authority ought to have taken into consideration whether the Appellant/Applicant fulfil the criteria as contemplated under Section 9 of the IBC and if so the petition has to be admitted. If the Applicant failed to fulfil the criteria as contemplated under Section 9 the Application has to be rejected. This basis of criteria is drawn from the judgment of the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs Kirusa Software Private Limited. The Learned Adjudicating Authority having taken note of the judgment of the Hon'ble Supreme Court in-re Mobilox Innovations and interpreted the said judgment that it is not intended to be substituted to a recovery forum. It is to be noted that the Hon'ble Supreme Court laid down the Law and hold that the Application has to be rejected if the Respondent/Corporate Debtor establishes that there is a pre-existence of dispute prior to issuance of demand notice. However, in the present case there is no pre-existence of dispute therefore the Application under Section 9 of the Appellant canno....
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....tlement Agreement duly signed. The Respondent addressed a Letter to the Appellant that there is correspondence between the Appellant and the Respondent with regard to the payments to be made in 3 instalments i.e., Rs. 2,00,00,000 by end of December 2019, Rs. 2,00,00,000 by end of March 2020 and Rs. 2,98,47,408 by end of June 2020. In continuation of the said liability/debt the Respondent vide the Letter dated 3rd January 2020 addressed to the Appellant regarding reschedule of payments to be made in 3 instalments as under :- (a) Rs. 2 crores by end of 15th February 2020, (b) Rs. 2 crores by end of 30th April 2020 and (c) Rs. 2.98 crores by end of 30th June 2020. 17. Accordingly, The Respondent had requested the Appellant to send the revised agreement in 2 originals for their Counter Signature. The Letter is annexed at Page 127 of Appeal Paper Book(s). In view of the request made by the Respondent the Appellant sent/delivered 2 sets of settlement agreement in original to the Respondent. It is the contention of the Appellant that the Respondent has not returned the settlement agreement duly signed as per their request for revised payment schedule. Having no other alternate the ....