Judgment
As delivered
C.P.(I.B.) No. 102/KB/2026IN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.Date of Hearing: 13.07.2026Date of Order: 10.08.2026In the Matter of:MKHS HOUSING LLP,Podra, Langolpota, Near 211 Bus Stopand ACC Cement, P.O. Rajarhat,Bishnupur, North 24 Parganas,Kolkata – 700135.APPLICANT/OPERATIONAL CREDITORVersusSHIVALAY INFRACON PRIVATE LIMITED,7, Rabindra Sarani, 4th Floor, RoomNo. 411, Kolkata – 700001.RESPONDENT/CORPORATE DEBTORCORAM:Shri. Labh Singh, Hon’ble Member (Judicial)Ms. Rekha Kantilal Shah, Hon’ble Member (Technical)IN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.Present:For the Applicant. : Ms. Rashmi Singhee, AdvocateMs. Supriya Harsha, Learned Advocate
O R D E R
Labh Singh Member, (Judicial)1. The present Company Petition has been filed by MKHS HousingLLP, the Applicant/Operational Creditor (hereinafter beingreferred to as ‘Applicant’) for initiation of CIRP againstthe Respondent, Shivalay Infracon Private LimitedCompany/Corporate Debtor (hereinafter to be referred as‘Corporate Debtor’), under Section 9 of Insolvency andBankruptcy Code, 2016 (for short ‘the Code’) for the allegeddefault of Rs. 11,13,39,348/- (Rupees Eleven Crore ThirteenLakhs Thirty-Nine Thousand Three Hundred and Forty-Eight),calculated up to 06.08.2025, on account of supply ofmaterials to the Corporate Debtor.2. Mr. Srikant Sikaria, a Designated Partner (DIN: 09253182)has been authorised by the Applicant for submitting theapplication. The copy of the Board Resolution is annexed asAnnexure – B.IN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.3. Briefly stated that facts of the applicant case are that theapplicant is a limited liability partnership firm with theidentification no. AAB-4570. The Corporate Debtor approachedthe Applicant for the supply of materials pursuant to whichagreed material were supplied and thus, the payment for thesame became due. The copies of letters acknowledging thedebt dated 07.06.2023 and 07.01.2024 are annexed as Annexure– E.3.1. It is submitted that on 02.05.2023, an agreement wasexecuted between the parties whereby, the Corporate Debtoracknowledged the liability and sought to convert theoperational debt to a loan. The applicant, in pursuance ofBoard Resolution passed at the meeting of partners held on21.04.2023, agreed for the conversion of the debt into loan.The agreement contains the due date of 07.01.2024 and anagreed interest of 15% per annum. A copy of the agreement isannexed as Annexure – D. A copy of the Board Resolution isannexed as Annexure – G.3.2. The Applicant time and again reminded the Corporate Debtorto clear the outstanding dues vide letters on 15.07.2023,15.01.2024, 22.01.2024, 29.01.2024 and 05.02.2024. Thecopies of the emails dated 15.07.2023, 15.01.2024,22.01.2024, 29.01.2024 and 05.02.2024 are annexed asAnnexures – F.IN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.3.3. The Applicant approached this Tribunal by filing anapplication, C.P. (I.B.) 342/KB/2024 under Section 7 of theCode, wherein this Tribunal observed that a debt ofoperational nature cannot be re-characterized or treated asa financial debt. The Tribunal, vide an order dated07.08.2025, allowed the withdrawal of the petition. A copyof the order dated 07.08.2025 is annexed as Annexure – J.3.4. As per Part-IV of the Application an amount of Rs.11,13,39,348/- (Rupees Eleven Crore Thirteen LakhsThirty-Nine Thousand Three Hundred and Forty-Eight) is stilldue and outstanding to be paid by the Corporate Debtor forthe materials supplied by the Applicant.3.5. The Applicant issued Demand Notice under Section 8 of theCode on 07.08.2025 duly served by hand delivery to theCorporate Debtor. The Applicant has filed an affidavit underSection 9(3)(b) stating that no payment or notice of disputehas been received by Applicant after service of DemandNotice. A copy of the Demand Notice is annexed as Annexure –K. The affidavit is annexed at Page No. 21 of theApplication.4. This Tribunal issued notice upon Respondent; however,despite due service of notice by way of email, the CorporateDebtor failed to appear before this Tribunal and submit anyIN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.reply. Thus, the matter was proceeded ex-parte against theCorporate Debtor vide order dated 22.06.2026.5. We have gone through the case file carefully and perused thepleadings of the Financial Creditor and documents placed onrecord and heard the arguments put forth by Ld. Advocateappearing for the applicant.6. The instant application has been filed on 06.04.2026 and thedate of default recorded is 30.06.2023. Hence, thisapplication is filled well within the period of statutorylimitation.7. Before we proceed to decide the issue involved in thepresent matter, it is relevant to refer to the provision ofSection 3(11) of IBC 2016, wherein the debt has been definedas a liability or obligation in respect of a claim which isdue from any person and includes a financial debt andoperation debt. The said relevant provision reads as under:(11) “debt” means a liability or obligation inrespect of a claim which is due from any personand includes a financial debt and operationaldebt;8. The operation debt has been defined in Section 5(20) of theCode which means a claim in respect of the provision ofgoods and services including employment or a debt in respectIN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.of the payment of dues arising under any law for the timebeing in force. The relevant provision of Section 5(20) ofIBC 2016 read as under:(21) “Operational Debt” means a claim in respectof the provision of goods or services includingemployment or a debt in respect of the paymentof dues arising under any law for the time beingin force and payable to the Central Government,any State Government or any local authority;”9. In the facts of the present case, it has been proved onrecord that the Corporate Debtor approached the Applicantfor the supply of materials pursuant to which agreedmaterial were supplied and consequently payment became dueand not paid by the Corporate Debtor. Thereafter, on02.05.2023, an agreement was executed between the partieswhereby the Corporate Debtor acknowledged the liability andsought to convert the operational debt to a loan. Theapplicant, in pursuance of Board Resolution passed at themeeting of partners held on 21.04.2023, agreed for theconversion of the debt into loan.10. Thereafter, the Applicant filed a Company Petition beingC.P. (I.B.) 342/KB/2024 under Section 7 of the Code;however, this Tribunal observed that a debt of operationalnature cannot be re-characterized or treated as a financialIN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.debt. Consequently, the Tribunal, vide an order dated07.08.2025, allowed the withdrawal of the petition.11. Therefore, it has been proved on record that there is a debtof Rs. 11,13,39,348/- (Rupees Eleven Crore Thirteen LakhsThirty-Nine Thousand Three Hundred and Forty-Eight) forwhich the Corporate Debtor has committed default inrepayment.12. Now, it has to be seen whether there is any existence ofdispute prior to the filing of the present petition. It is asettled proposition of law that an application under Section9 of the Code is acceptable once the demand by way ofdelivery of notice or invoice demanding payment at least anamount of Rs. One crore is made by the operational creditorunder Sub Section (1) of Section 8 of the IBC Code 2016 andthere is no pre-existing dispute between the parties asdefined in Sub Section (6) of Section 5 of the IBC Code2016. The moment default is of rupees one crore or more, andthere is no pre-existing dispute between the parties, theapplication to trigger Corporate Insolvency ResolutionProcess under Section 9 of the IBC Code is maintainable.13. Hon’ble Supreme Court in case of Mobilox Innovative PrivateLimited v. Kirusa Software Private Limited, (2018) 1 SCC353, observed that:IN THE NATIONAL COMPANY LAW TRIBUNALKOLKATA BENCH, (COURT NO.-II)KOLKATA.“40. It is clear, therefore that once theOperational creditor has filed an application,which is otherwise complete, the adjudicatingauthority must reject the application under Section9(5)(2(d) if notice of dispute has been received bythe operational creditor or there is a record ofdispute in the information utility. It is clearthat such notice must bring to the notice ofoperational creditor the “existence” of a disputeor the fact that a suit or arbitration proceedingrelating to a dispute is pending between theparties. Therefore, all that the adjudicatingauthority is to see at this stage is whether thereis a plausible contention which required furtherinvestigation and that the “dispute” is not apatently feeble legal argument or an assertion offact unsupported by evidence. It is important toseparate the grain from the chaff and to reject aspurious defence which is mere bluster.”
14. In the instant case, the applicant has placed on record a copy of demand notice dated 07.08.2025 which has duly been accepted by the Corporate Debtor by affixing its seal and duly signed by its designated partner. However, despite receipt of demand notice, no notice of existence of a IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH, (COURT NO.-II) KOLKATA. pre-dispute has been served or raised upon the applicant. Therefore, there is no bar for admission of this application under Section 9 of the Code.
15. In view of the above discussion, this Tribunal is of the view that this Company Petition, C.P. (I.B.) No. 102/KB/2026 is completed and is allowed under Section 9 of the Code and accordingly, we order the initiation of Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor.
16. The Applicant has proposed the name of Mr. Chandra Kumar Jain Resolution Professional of the Corporate Debtor. The registration number of the IRP being IBBI/IPA-001/IP-P00214/2017-2018/10414 and email id -ckcacs@yahoo.co.in. Mr. Chandra Kumar Jain has given its written consent in required Form-2 which is attached with the application as Annexure – C along with the AFA. Therefore, this bench appoints Mr. Chandra Kumar Jain, as the Insolvency Resolution Professional of the Corporate Debtor.
17. We direct the Applicant to deposit a sum of Rs. 2 Lakhs with the Interim Resolution Professional, namely Mr. Chandra Kumar Jain to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH, (COURT NO.-II) KOLKATA. Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Applicant. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Applicant.
18. As a consequence of the application being admitted in terms of Section 9(5) of the Code, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to the Corporate Debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force.
19. A copy of the order shall be communicated to the Applicant, Corporate Debtor and IRP above named, by the Registry. In addition, a copy of the order shall also be forwarded to IBBI for its records. Applicant is also directed to provide a copy of the complete paper book to the IRP. A copy of this order is also sent to the ROC for updating the Master Data. ROC shall send compliance reports to the Registrar, NCLT.
Rekha Kantilal Shah Labh Singh Member(Technical) Member(Judicial)
