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2022 (9) TMI 681

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....Court convened viahybrid mode. 2. This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 ('the Code') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mr. Ramkrishna Das, Director, Krishna Hi-Tech Infrastructure Private Limited('Operational Creditor'), duly authorisedvide Board Resolution dated 18 June, 2019 Page 31 of the Petition for initiation of Corporate Insolvency Resolution Process ('CIRP') against Bengal Shelter Housing Development Private Limited('Corporate Debtor'). 3. The present Petition was filed on 09 August, 2019 before this Adjudicating Authority. The total amount claimed in default is Rs.1,70,76,158/- (Rupees One Crore Seventy La....

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....urchase Order-One, the Operational Creditor also executed extra work as per instruction of the engineer-in-charge and, thereby submitted the claims amounting to Rs.2,20,751/- (Rupees Two Lakh Twenty Thousand Seven Hundred Fifty One only). 5.4 Further, as per the invoices raised by the Operational Creditor for Purchase Order-One, the aggregate amount is Rs.50,57,661/- (Rupees Fifty Lakh Fifty Seven Thousand Six Hundred Sixty One only). However, the Operational Creditor received only a sum of Rs.23,93,411/- (Rupees Twenty Three Lakh Ninety Three Thousand Four Hundred Eleven only) 5.5 For Purchase Order-Two also, the Operational Creditor received part payment from the Corporate Debtor. However, during the civil construction of the work for P....

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....2019. 6. Submissions by the Ld. Advocate appearing on behalf of the Corporate Debtor. 6.1 The Corporate Debtor has repeatedly informed the Operational Creditor about the deficiency in their work, including the defective materials and poor management of the craftsmen. 6.2 The Operational Creditor handed over an incomplete work to the Corporate Debtor, because of which the Corporate Debtor had to engage third party to complete the construction project. Such engagement of the third party has caused the Corporate Debtor a sum in excess of Rs.1,00,00,000/- (Rupees One Crore only). 6.3 The Operational Creditor deliberately avoided their liability. On several occasion the Corporate Debtor wrote to the Operational Creditor to reconcile the acco....

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.... any Pre-existing dispute? Analysis & Findings 8. We have heard the Ld. Counsel appearing on behalf of the Operational Creditor and the Ld. Counsel appearing on behalf of the Corporate Debtor and perused the record. 9. Upon perusal of the record placed before us, we rely on Innoventive Industries Ltd. v. ICICI Bank and Anr., (2018) 1 SCC 407where the Hon'ble Supreme Court while explaining the provisions of Sections 7 or 9 observed and held: "27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which inc....

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.... or copy of the invoice mentioned of a dispute or the record of the pendency of a suit or arbitration proceedings, which is preexisting- i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code." 10. Further, in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited 2017 (1) SCC onLine SC 353 it was opined by the Hon'ble Apex Court that; "33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e., on nonpayment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of....

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.... dated 26th April, 2018; (Page 35 of reply affidavit), e-mail dated 25th May 2018 for reduction of labour strength; (Page 48 of reply affidavit), e-mail dated January 18, 2019 for incomplete rectification work and deficiency of work). (ii) Second, was with respect to the 'Slow Progress in the Work' -(Page 13 of reply affidavit) e-mail dated 26th February, 2018; (Page 15 of reply affidavit) e-mail dated 3rd March 2018; (Pg 17 of reply affidavit) e-mail dated 13th March 2018; (Pg 18 of reply affidavit) e-mail dated 14th March 2018; (Pg 29 of reply affidavit) e-mail dated 26th April 2018 and (Pg 33 of reply affidavit) e-mail dated 25th May 2018. (iii) Third, was with respect to the 'Defective Materials' -(Pg 18 of reply affidavit), e-mai....