TaxTMI 
TaxTMI 
2026 (1) TMI 396
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....nkruptcy Code 2016 ('IBC' in short) by the Appellant arises out of the Order dated 18.12.2023 (hereinafter referred to as 'Impugned Order') passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench-III) in C.P. (IB) No. 126/ND/2023. By the impugned order, the Adjudicating Authority has dismissed Section 9 application filed by the Appellant-M/s Airtech Airconditioners. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. To summarily capture the factual matrix of the matter, we notice that the Appellant-M/s Airtech Airconditioners-Operational Creditor was engaged by Corporate Debtor-M/s Parnika Commercial & Estate Private Limited to provide Heating, Ventilation and Air Cond....
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....ding on the maintainability of the Section 9 application should have kept in mind the fact that the invoices of the various projects were separate and the dates of default were also separate. Emphasis was laid on the fact that the default in respect of invoices pertaining to DRDO and IIT Bombay projects admittedly fell within the Section 10-A period but the relevant invoices in respect of Vanijya Bhawan Project fell outside the Section 10-A period. It was contended that the amount due and payable from the Vanijya Bhawan Project alone was Rs 2.36 Cr. The Adjudicating Authority had erroneously rejected the Section 9 application without taking notice of the invoices pertaining to Vanijya Bhawan Project. 4. Denying the issue of pre-existing ....
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....e was raised as an after-thought to overcome the Section 9 application. Hence, the allegation of pre-existing dispute raised by the Corporate Debtor were not only unfounded but an after-thought which ought not to have been taken cognizance of by the Adjudicating Authority. Even the factum of initiation of arbitration proceedings did not constitute a pre-existing dispute as these proceedings were filed much after the Section 8 Demand Notice. 5. Refuting the contentions of the Appellant, Shri Bhupesh Narula, Ld. Advocate on behalf of the Corporate Debtor-Respondent submitted that they had issued a demand notice on 19.10.2022 which was prior to the Demand Notice issued by the Appellant. It was emphatically asserted that when the Corporate D....
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....he Corporate Debtor but the Appellant has mischievously raised invoices for the same works completed by Global Aircon. It was submitted that details of the payments made to Global Aircon was reflected by them in para 4 of their Reply to the present appeal at page 11. It was pointed out that at para 5 of the same Reply at page 13 other disputes relating to the invoices were also fleshed out. A reconciliation statement was also placed at para 7 of the same Reply at page 15-16 which statement shows that the Operational Creditor was liable to refund Rs 3.40 Cr. alongwith interest to the Corporate Debtor. It was further contended that the Appellant had no grounds to raise the Section 9 application because the Respondent had already invoked the A....
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.... 3. IT Bombay Mumbai 8. As per the invoices raised to the Corporate Debtor, the debt became due and payable became due and payable within 15 days of the receipt of the payment by the Corporate Debtor from their respective clients. The details of the said uncleared invoices are as under: Invoice No. Date of Default Amount (Rs.) Vanijya Bhawan, Delhi 25/2021- 2022 April 14, 2022 1,41,82,896 04/2022- 2023 July 29, 2022 1,07,29,601 Less: Partly received amount for the invoice 12,19,002 Total (A) 2,36,93,495 DRDO, Delhi ..... 2. Amount claimed to be in default and the date on which the default occurred. .... .... Invoice No. Date of Invoice Date of D....
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....wo invoices) and 03.03.2021 have been recorded in the impugned order. These invoices undisputedly fall in the excluded period of Section 10-A. We also find that the Adjudicating Authority held the present Section 9 application to be not maintainable by taking notice of only three invoices dated 06.11.2020, 27.11.2020 and 03.03.2021. Where the Adjudicating Authority blundered was that it clearly failed to take note of the two invoices of the Vanijya Bhawan Project, the date of which invoices and their date of defaults unambiguously fell beyond the period covered by Section 10-A of IBC. Since the date of default arising out of these two invoices fall beyond the Section 10-A period, the Section 9 application could not have been dismissed by th....