- (1.) The above Petition has been filed by M/s. KLA Construction Technologies Pvt. Ltd. in the capacity of Operational Creditor against M/s. CKG Reality Pvt. Ltd. claiming to be its Corporate Debtor under the provisions of Section 9 of Insolvency and Bankruptcy Code, 2016 ( IBC,2016) . The Transaction giving rise to the claim and the particulars of Operational Debt has been stated in Part. IV of the application filed in the relevant form, as provided under Insolvency and Bankruptcy Board of India(Application to Adjudicating Authority) Rules, 2016 for brevity 7WV rules. Perusal of the same discloses that the principal amount in default is claimed to be in a sum of Rs.11.00 lakhs arising due to non-payment of an advance which was required to be paid by the Corporate Debtor in relation to the contract entered into between the parties for the construction of CKG Xpresswalk at Rudrapur - Structural Works for a contract value of Rs.7,41,35,813.32. It is claimed by the Operational Creditor that as per the said agreement entered into between the parties, a sum of Rs.11.00 lakhs was required to be paid as mobilization advance prior to the commencement of actual work in order to enable the Operational Creditor to mobilize machinery and equipments at the construction site as the nature of work is that!civil construction contract. The Operational Creditor also claims that on 13.7.2017 based on the minutes of the meeting held between the Operational Creditor and the Corporate Debtor, a sum of Rs.21.00 lakhs was demanded to be paid as an advance inclusive of Rs. 11.00 lakhs, as detailed above by the Operational Creditor and the Corporate Debtor also acceded to the said request. However, despite the same as no payment was forthcoming from and on the part of the Corporate Debtor, Operational Creditor issued a demand notice as required under Section 8 of IBC,2016 dated 12.9.2017 and it is also represented that the same was duly served upon the Corporate Debtor but no notice of dispute or payment was forthcoming from the Corporate Debtor and in relation to the non-receipt of notice of dispute to the said effect has also been filed alongwith the application and in the circumstances the Operational Creditor has intended to invoke the provisions of IBC,2016 seeking for unleashing the Corporate Insolvency Resolution Process as against the Corporate Debtor.
(2.) Perusal of the record shows that an advance copy of the application was duly served upon the Corporate Debtor by the applicant. Subsequently, the Corporate Debtor has entered its appearance and has also filed its reply as well as an additional reply in order to bring forth all the facts before this Tribunal. Perusal of the said reply as well as additional reply filed by the Corporate Debtor contends out that in terms of the contract entered into by both the parties the Corporate Debtor was obliged to pay the mobilization advance, but however subject to completion of mobilization process by the Operational Creditor. Since the same was not completed despite several reminders and requests for mobilization from the Corporate Debtor, the advance was not paid. It is also pointed out in the reply that the Operational Creditor had infact started de-mobilization by initiating the de-mobilization procedure and hence the claim in relation to mobilization advance has been made only to invoke undue pressure by the Respondents/Corporate Debtor to exhort monies from it. It is also further contended in the reply that the non-commencement of works at the project site by the Operational Creditor has resulted in huge losses which has provided the scope to Corporate Debtor to file claim for the recovery of cost and damages from the Operational Creditor in terms of the contract entered into between the parties.
(3.) In the additional affidavit filed on behalf of Respondent/Corporate Debtor wherein it is contended by the Corporate Debtor that a sum of Rs. 11.00 lakhs as token advance being the claim herein was required to be paid only to start the work after the formal agreement is signed between the parties and the site is set up and ready for concreting and that the Corporate Debtor was entitled to recover the advance from the working bill and since the site was not ready for concreting, it is claimed by the Corporate Debtor that onus of paying mobilization advance does not arise as the site was for sometime flooded with water and hence required de-watering.;