- (1.) The Petitioner categorizing himself as 'Operational Creditor' has approached this Tribunal with the present Petition against the 'Corporate Debtor' on the grounds that out the total debt of Rs. 11,90,978/- the entire amount is in default and in the circumstances the Petitioner has been forced to approach this Tribunal under the provisions of Insolvency and Bankruptcy Code, 2016( for brevity hereinafter referred to as IBC,2016). It is the claim of the Petitioner that the amount claimed, as above, arose by virtue of letter of intent dated 28.01.2014 placed by the Respondent Corporate Debtor in relation to execution at their site of the interior work at Administration Block at Water Park, Sector 29, Gurgaon. It is claimed by the Petitioner/Operational Creditor that prior to the above letter of intent, an agreement dated 20.1.2014 was entered into by the parties in relation to execution of works in a total sum of Rs.76,60,000/- and according to the agreement, payments were required to be made within a period of 21 days on the submission of the individual claims. The above value, the Petitioner claims of Rs.76,60,000/- was enhanced by way of amending agreement dated 27.09.2014 to Rs. 1,24,20,530/-.
(2.) Pursuant to the above two agreements, the Petitioner avers that the work entrusted to the Petitioner was successfully completed on 20.09.2014 and that in relation to the successful completion, a Completion Certificate under the hand of the Respondent Corporate Debtor was also issued on 30.9.2014. As per the agreement and the Completion Certificate issued by the Corporate Debtor, as above, a period of 12 months was also provided as 'defect liability period' on the date of issue of the Completion Certificate and the said period had also expired on 30.09.2015. Subsequent to the successful completion of the works entrusted by the Respondent to the Petitioner on 7.11.2014, a final bill was raised in a sum of Rs.1,06,96,430/-and in relation to the said bill, a sum of Rs.11,09,978/- is claimed as due from the Corporate Debtor in this Petition by the Petitioner. The Petitioner avers that despite communications, rather repeated, the Respondent is yet to settle the amount due to the Petitioner. Despite demands vide email dated 6.05.2015 and again on 26.06.2015 on the part of the Respondent of the sums due to the Petitioner, Respondent has failed to settle the amounts and in the circumstances the Petitioner was constrained to initially issue a notice for winding up under the erstwhile provisions of the Companies Act, 1956 which was duly acknowledged by the Respondent but however no payments were made. In the circumstances, another notice under IBC,2016 dated 30.01.2017 was issued to the Respondent/Corporate Debtor along with details of invoices and despite the same the amounts have not been paid nor any notice of dispute has been given by the Respondent as mandated under the provisions of IBC,2016. Taking into consideration the above facts, application has been filed before this Tribunal for initiating Corporate Insolvency Resolution Process, as contemplated under IBC,2016. Notice of the Application as mandated to be dispatched by the Operational Creditor upon filing of the instant Petition under Rule 6(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 seems to have been sent on 18.04.2017 and from the tracking report it is evident that on 18.04.2017 itself it has been delivered.
(3.) A perusal of the Petition filed by the Petitioner and after also affording hearing to the representation of the Learned Counsel for the Petitioner, it is evident from the records, that in relation to the works as entrusted by the Respondent/Corporate Debtor to the Petitioner/Corporate Creditor had been fully completed in view of the Virtual Completion Certificate issued by the Respondent. It is also evident from the virtual Completion Certification that work has been physically completed on 30.09.2014 in all respects and that materials have also been removed by the Petitioner from the work site. The defect liability period in interior work at Administration Block, as contended by the Petitioner which has been specified as 12 months from the date of Virtual completion i.e. 1.10.2014 to 30.09.2015 has also expired and there is no record from and on the part of the Respondent to establish that any defects have been notified in relation to the work carried out by the Petitioner. On the other hand vide email dated 06.05.2015, it is seen that the liability is not disputed by the Respondent and in relation to the current bill it is agreed that a part payment would be released and vide email dated 26.05.2015, it is seen that the Respondents have stated that payment is under process and that the same shall be released shortly, all of which points out that the Respondent is not disputing the liability owed to the Petitioner.;