2022 (7) TMI 1283

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....Appellant and Learned Counsel for the Respondent. 2. This Appeal has been filed against the order dated 27.04.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad, Special Bench, Court-I, which order has been passed in I.A No. 677 of 2021 in CP (IB) 611 of 2019. The Appellant has filed an Application under Section 7 of the IBC for initiating Corporate Insolvency Resolution Process (CIRP) against the Respondent claiming a financial debt of Rs. 1,85,00,000/- and Application I.A 677 of 2021 was filed by the Corporate Debtor for bringing certain documents in defense. The Adjudicating Authority heard the parties and has passed the impugned order on 27.04.2022. In paragraph 12, it was held that the Application u....

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....ta High Court in its judgment dated 11.06.2021 has held the contract a sub-contract. 5. We have considered the submissions of the parties and perused the record. 6. The Appellant has filed the copy of the Sub-Contract Agreement dated 07.03.2017 and subsequent supplementary contract dated 24.08.2017 which clearly mentions that it is sub-contract agreement with regard to the project "Construction of New Plant Shed and Allied Civil, Structural and Enabling works at Budge Budge BP, West Bengal- Tender No- WBSO/LPGE/PT-01/16-17". The tender was allotted to the Corporate Debtor who for carrying out the project entered into the Sub-Contract Agreement with the Appellant. The terms and conditions under which project was to be carried out had b....

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....cter of the transaction into a financial debt. In Clause 18 of the contract contains arbitration clause, for settling amicably by mutual consultation and thereafter approaching the arbitration as per Arbitration & Conciliation Act, 1996. The Appellant ought to have taken recourse to Clause 18 of the Sub-Contract Agreement dated 07.03.2017 and these issues could not have been decided in IBC proceedings. The Adjudicating Authority has rightly held that it was not financial debt and rejected Section 7 Application. 9. Learned Counsel for the Appellant also contended that the judgment could not have been delivered under Rule 151 of the NCLT Rules, 2016. The order which is preface to the judgment reads as follows:- "The matters were h....