Creative Solutions vs Amr Infrastructure Ltd

Creative Solutions Appellant

Versus

AMR Infrastructure Ltd. Respondent

Present: For Appellants: Shri Rohit K. Aggarwal, Advocate

For Respondents: Shri Shivam K., Authorised Representative of the Respondent.

ORDER

26.07.2017 This appeal has been preferred by the appellant

against order dated 25th April, 2017 passed by the Learned

Adjudicating Authority (National Company Law Tribunal), Principal

Bench, New Delhi (hereinafter referred to as 'Adjudicating Authority')

in Company Application No. (I.B.)/PB/2017. By the impugned order,

learned Adjudicating Authority rejected the application preferred by

the appellant under Section 9 of the Insolvency and Bankruptcy Code,

2016 ('I&B Code' for short) on the ground that the appellant is not an

'Operational Creditor'.

2. The case of the appellant is that the appellant, who is in the

business of architecture and interior designing, was approached by 2

the respondent-'Corporate Debtor' for rendering services relating to

designing and development of the Project "Kessel I-Valley" at Greater

Noida, which, inter alia, included masonry work, wood work and other

ancillary work in 2012 till 2015. As per the industrial practice, the

appellant from time to time raised various bills/invoices towards the

work for inspection /verification which were acknowledged by the

respondent. The respondent made part payment and an amount of

Rs. 1,08,99,705/- is still due and outstanding.

3. Despite repeated requests and reminders, no response having

received by the respondent, the appellant sent a notice on 30th

January, 2017 under Section 8 of the I&B Code read with Rule 5 of

the Insolvency and Bankruptcy (Application to Adjudicating

Authority) Rules, 2016. Even after service of notice, as the

respondent neither made any payment nor filed any reply to the said

demand notice, the applicant/ petitioner preferred the company

application before the Learned Adjudicating Authority as mentioned

above.

4. According to the respondent-'Corporate Debtor', the invoices/

bills raised by the appellant were bogus and do not contain the name

of the party against whom they were raised, and there is no date

shown on them. It is further stated that there was no registration

number with regard to service tax or sales tax or any other fiscal

statute printed on the face of bills/invoices raised. As regards the 3

acknowledgement of notice, learned counsel for the respondent

submitted that one Mr. Vijay Yadav who had acknowledged the

bills/invoices was in employment of the respondent company prior to

2014 and he had no authority to acknowledge the bills or invoices. It

is also pointed out that no statement of accounts detailing the

transactions between the appellant and the respondent company, has

been produced for the relevant period. Denying the claim of the

appellant, the respondent claimed that actually a sum of

Rs.45,00,000/- has already been paid for the work done.

5. Learned counsel for the appellant submitted that the appellant

is a service provider and come within the meaning of 'Operational

Creditor'. According to him, in absence of any dispute raised by the

respondent-'Corporate Debtor' prior to issuance of notice under

Section 8, it cannot be held that any dispute was in existence.

6. We have heard the learned counsel for the parties but in view

of the development as taken in place in the meantime. It is not

necessary to decide the claim as made by respective parties.

7. One 'Nikhil Mehta and Sons' claimed to be 'Financial Creditor' and

filed an application under Section 7 of the I&B Code before the Learned

Adjudicating Authority (National Company Law Tribunal), Principal

Bench, New Delhi against the Respondent-AMR Infrastructure Ltd. The

said application was dismissed on the ground that they are not 'Financial Creditors'. Being aggrieved 'Nikhil Mehta and Sons' preferred

Company Appeal (AT) (Insolvency) No. 07 of 2017 challenging the order

passed by Learned Adjudicating Authority. This Appellate Tribunal,

after considering the case of 'Nikhil Mehta and sons', held them to be

the 'Financial Creditors' of AMR Infrastructure Ltd. ('Corporate Debtor')

and by judgement dated 21.07.2017, passed the following order:

"27. For the reasons aforesaid, we set aside the

impugned judgement dated 23rd January 2017

passed by the learned Adjudicating Authority in C.P.

No. (ISB)-03(PB)/201 7 and remit the matter to

Adjudicating Authority to admit the application

preferred by appellants and pass appropriate order,

f the application under Section 7 of the 'I & B Code'

is otherwise complete. In case it is found to be not

complete, the appellants should be given seven days'

time to complete the application as per proviso to

Section 7 of the 'I & B Code'.

28. The appeal is allowed with aforesaid

observations and directions. However, in the facts

and circumstances, there shall be no order as to

cost."

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8. As pursuant to this Appellate Tribunal's order, the application

preferred by Nikhil Mehta & Sons is to be admitted, and Resolution

Process will be initiated, the question of initiation of further proceeding

against some 'Corporate Debtor' under any of the provisions of I&B Code

(Sections 7, 9 or 10) does not arise. The appellant herein, whether it is

'Operational Creditor' or not, claim to be creditor is now entitled to file

its claim before the 'Interim Resolution Professional', as may be

appointed and the advertisement as may be published in the newspaper

calling of such application with regard to resolution of 'Corporate

Debtor'-AMR Infrastructure Ltd. In such case, their claim should be

considered by the Interim Resolution Professional (IRP) and the

Committee of Creditors, in accordance with the provisions of the 'I&B

Code'. Therefore, no further order is required to be passed in this appeal.

9. However, in case the application preferred by 'Nikhil Mehta and

sons' under Section 7 of I&B Code is not found to be complete or if they

fail to complete the defect, if any, as per proviso to Section 7 of I&B Code

and in case the said application of 'Nikhil Mehta and Sons' is dismissed

on such ground, in such case, as the appellant cannot prefer any

application before the Interim Resolution Professional, we give liberty to

the appellant to file 'interlocutory applications' in the present appeal for

recall of this order for the decision on merit.

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10. The appeal stands disposed of with the aforesaid observations.

However, in the facts and circumstances of the cases, there shall be no

order as to costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh Member (Technical)

/ng/