TaxTMI 
TaxTMI 
2025 (11) TMI 1715
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....ject of M/s Jaiprakash Associates Limited, Kensington Boulevard, Noida, in respect of Towers No. 7, 12, 14, 19, 20, 21, and 22 pursuant to three separate agreements dated 17 July 2017 concerning Civil, Electrical, and Plumbing works for the said project. The Appellant further submitted that, being unable to execute the abovementioned works independently, the Respondent approached the Appellant for necessary financial and working assistance. Consequently, three distinct work orders dated 25.02.2017 were issued by the Respondent in favour of the Appellant for the execution of Civil, Electrical, and Plumbing works. 3. The Appellant submitted that, in order to foster and maintain a healthy commercial relationship, there was mutual flexibility between the parties in the adjustment of payment terms from time to time. The Appellant stated that payments received from the Respondent were consistently adjusted against outstanding invoices through the maintenance of a running and recurring account in the name of the Respondent. It is further submitted that the last part payment amounting to Rs. 9,16,000 was received by the Appellant on 15.10.2019 and the same was duly appropriated towards ....
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....tually distinguishable from the present case as it involved an attempt to alter the date of default a scenario not applicable here. 8. The Appellant submitted that the existence of debt and default stands conclusively proved through the invoices, bank statements, and ledger accounts furnished. 9. Concluding his arguments, the Appellant requested this Appellate Tribunal to allow the present appeal. 10. Per contra, the Respondent denied all the averments made by the Appellant as misleading and baseless. 11. The Respondent submitted that the Appellant filed an application bearing No. IB 309(ND)/2022 dated 21.02.2022 before the Adjudicating Authority, seeking initiation of CIRP on account of an alleged operational debt default of Rs.1,40,96,295/- inclusive of interest; however, the Respondent only became aware of the proceedings at a belated stage due to unavoidable circumstances, promptly appearing to contest the application on grounds of the Appellant's fraudulent and malicious intent, as well as inherent technical defects therein. 12. The Respondent submitted that the petition misleads this Appellate Tribunal by fixating on a single invoice of Rs. 1,79,463/- durin....
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....ional Creditor/Appellant suffers from multiple defects rendering it ineffective. The Legal Notice was neither served physically at the office of the Corporate Debtor (CD) via speed post, which was sealed by NDMC in 2019, nor was there any email communication traceable, as the CD lacked technical staff to monitor emails regularly. Furthermore, the name of the OC appearing on the Legal Notice is inconsistent. The Legal Notice also failed to annex crucial documents such as ledgers, invoices, or supporting evidence either by physical delivery or email, despite clear mandates. 17. It is the case of the Respondent that the Appellant/OC baselessly alleges that the CD received or adjusted payments in respect of other projects, disregarding the fact that the cancellation of CD's work orders by M/s Jai Prakash Associates Limited was a direct consequence of the Appellant's mismanagement. Moreover, the Appellant has maliciously assumed work orders in their own name from M/s Jai Prakash Associates Limited. It was the Appellant's duty to recover the claimed amount from M/s Jai Prakash Associates Limited, but having failed in this, the OC is now making a false claim against the CD. 18. The ....
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....faults between 25.03.2020 and 24.03.2021; benefits under Section 10A apply only to defaults within this period. 27. The Adjudicating Authority after noting above ratio of Apex Court further held that since the invoice dated 10.05.2020 falls in 10A period and since no application under Section 9 could not have been initiated, the demand notice dated 16.09.2021 issued by the Appellant to the Respondent under Section 8 of the Code also deemed not to be valid. The Impugned Order also mentioned that the segregation of claims is not possible after filing application under Section 9 of the Code. Thus, we find that the Impugned Order rejected the Section 9 application of the Appellant primarily on the ground that the demand notice issued under Section 8 of the Code as well as the main application filed under Section 9 of the Code was also on an invoice pertaining to the suspended period for initiation of CIRP and petition could not have been entertained. 28. In this connection, we note that the Appellant brought to our notice that there were 17 invoices against which part payments were received and only invoice no. RA-E-06 dated 10.05.2020 falls in 10A period which is for Rs. 1,67,29....
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....ers, the date of default was the date of invoice. It was stated that the invoices raised under the 4th purchase order were anyways already excluded. It was further submitted that even if the 3rd and 4th purchase orders are excluded, the first two purchase orders cumulatively amount to default which is above the threshold limit of Rs.1 crore necessary for filing an insolvency application. We are satisfied with the reasoning offered by the Operational Creditor and do not find any force in the contention of the Appellant." (Emphasis Supplied) 32. Based on above judgement passed by this Appellate Tribunal, even the concerned invoice dated 10.05.2020 is excluded, the cumulative amount of default is above the threshold limit of Rs. 1 Crores which is necessary for filing an insolvency application. Once, it is concluded that the Section 9 was correctly filed by the Appellant as OC, based on the said invoice dated 10.05.2020 and where 16 out of 17 invoices were prior to 10 A period, consequently it was valid on the part of the Appellant to issue demand notice under Section 8 (1) of the Code. 33. Thus, the Adjudicating Authority erred on both the accounts on not considering the excl....