MANISHAAS INFRATECHO SOLUTIONS PRIVATELIMITED VS BHONU HULSHI REAL ESTATE PRIVATE LIMITED CA 1222 of 2024
Facts:
1) Appeal is filed challenging the order of Adjudicating Authority wherein it has dismissed Section 9 Application filed by the Appellant – Operational Creditor and imposed a penalty of Rs. One Lakh only. Aggrieved by the impugned order, the present appeal has been preferred by the Operational Creditor.
Issue: Whether the appeal can be allowed ?
Arguments:
Appellant:
1) Counsel submitted that OC received a development-cum- maintenance work order from the Corporate Debtor – Bhonu Hulshi Real Estate for civil construction and miscellaneous work for a real estate project, namely, Bhonu Hulshi Nilaay Project. It is further stated that in pursuance of the work order, the Operational Creditor undertook various civil-cum-electrical works which were completed and invoices were raised aggregating an amount of Rs.4.26 cr for payment. It was further submitted that the Corporate Debtor had made part payment of Rs.2.05 cr and there was an outstanding payment of Rs.2.83 cr including interes.
2) It was submitted that Appellant had issued Section 8 demand notice on 07.10.2022 which was served upon the Corporate Debtor on 10.10.2022. Since the Corporate Debtor did not reply to the demand notice within the prescribed ten days period, nor made any payments, the Appellant filed the Section 9 application.
3) It was submitted that AA had committed an error in not considering the default on the part of the Corporate Debtor in terms of Section 3(12) of the IBC which expressly states that when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the Corporate Debtor, such non repayment shall be treated as default. Adjudicating Authority wrongly took the view that the Section 9 application could not have been filed by the Appellant since the default in respect of the third invoice raised by the Appellant amounting Rs.2.47 cr arose after 24.03.2020 and hence attracted Section 10A of the IBC.
Respondent:
1) Counsel submitted that submitted that the Corporate Debtor had cleared all payments to the Operational Creditor and to their vendors and labourers. It was also asserted that detailed submissions have been made before the Adjudicating Authority to show that the entire payment had been made against the bills of the Operational Creditor either directly from the project account or from the account of one of the Directors of the Corporate Debtor.
Decision: NCLAT Dismissed the appeal.
Rationale:
1) It held that On the issue of outstanding operational debt payable by the Corporate Debtor, we notice that in all fairness, the Appellant has admitted that the Corporate Debtor has consistently denied debt and default. The Appellant has also admitted that it is the contention of the Corporate Debtor that all due payments have been made either to the Operational Creditor and/or to the labourers and vendors of the Operational Creditor directly.
2) In the absence of any credible proof put forth by the Operational Creditor to controvert the contention of the Corporate Debtor that the entire debt has been cleared and that there was no default, and have no reason to disagree with the above findings of the Adjudicating Authority that the allegations of debt and default raised by the Appellant is facile and lacks substance.
3) In the absence of any agreement available on record, the alleged date of default cannot be whimsically and arbitrarily decided by the Operational Creditor. The Operational Creditor needs to be put to strict proof to establish the date of default. Neither in their pleadings nor in the course of oral arguments, any evidence has been placed on record by the Appellant to show how the default qua the third invoice did not arise during the Section 10A prohibited period.
Order:
