Narender Sharma vs Vistar Construction Pvt. Ltd

IN THE MATTER OF: Narender Sharma .....Appellant Vs. Vistar Construction Pvt. Ltd. ......Respondent

Present : For Appellant: Mr. Abhishek Jain, Advocate

For Respondents: Mr. Nikhil Jain, Advocate

08.08.2019 - The Appellant - erstwhile Civil Engineer of Appellant -

'Narender Sharma' was also Civil Engineer of 'Vistar Construction Pvt. Ltd.'

('Corporate Debtor') was forced to resign from service on 27th May, 2015.

Subsequently, he filed Demand Notice u/s 8(1) of the Insolvency & Bankruptcy

Code, 2016 ('I&B' Code, for short) on 21st July, 2017 to one 'Three C.Developers',

showing him as 'Corporate Debtor'.

2. However, an application u/s 9 of the Insolvency & Bankruptcy Code,

2016 ('I&B' Code, for short) was filed by the Appellant against 'Vistar

Construction Pvt. Ltd.' - present 'Corporate Debtor' in Company Petition No.

(IB)-521(ND)/2017. ....contd.

3. The Adjudicating Authority ('National Company Law Tribunal') New Delhi

Bench noticed the stand taken by the 'Corporate Debtor' that notice u/s 8(1)

was addressed to one 'Three C. Developers' and not to the 'Corporate Debtor'.

4. In this background, learned counsel for the Appellant withdrew such

petition u/s 9 of the 'I&B' Code on 18th September, 2017 with liberty to file fresh

petition.

5. The Adjudicating Authority by order dated 18th September, 2017 granted

liberty subject to the laws of Limitation.

6. Subsequently, Demand Notice was issued u/s 8(1) of the 'I&B' Code to

the 'Corporate Debtor' on 5th October, 2017 which was followed by an

application u/s 9 of the 'I&B' Code preferred before the Adjudicating Authority

('National Company Law Tribunal') Special Bench, New Delhi (Court No.-II) by

Impugned Order dated December, 2018 dismissed the application on the

ground of pre-existing dispute.

7. Learned Counsel for the Appellant submits that there is no pre-existing

dispute and Suit was filed in the Court at Noida on 16th October, 2017 itself

much after the Demand Notice dated 5th October, 2017 and, therefore, such

Suit cannot be relied upon to hold pre-existing dispute.

8. From the record as appended by the Appellant (Annexure - A/8), we find

that learned counsel for the Appellant earlier sent a legal notice on 4th April,

2017 to the 'Corporate Debtor'.

Company Appeal (AT) (Insolvency)No. 60 of 2019 2

9. In reply to the same, learned counsel for the 'Corporate Debtor' by reply

dated 25th July, 2017 raised the dispute relating to payment relevant of which

portion is quoted below:-

"Preliminary Objections:

4. At the very outset, we have to state that your

client has not apprised you of the correct facts and

circumstances involved in the matter of the instant legal

notice and has a resignation letter to our Client informing

that he had resigned from the current employment with

effect from 27.05.2015 which was not in compliance with

the terms of the contract of employment with our Client.

The contents of preliminary objections may be read as part

and parcel of present para under reply and are not

repeated herein for the sake of brevity.

5. That the contents of Para 5 of the notice

under reply are wrong, false and hence denied. It is

submitted that though our Client had issued a full and

final settlement with your Client but it was subject to the

fulfilment of the obligations of handing over of relevant

documents including site plans, working drawings,

schedules etc. relating to the day to day execution of the

project to the site engineer who had replaced your client

Company Appeal (AT) (Insolvency)No. 60 of 2019 3 on time bound manner. The contents of preliminary

objections may be read as part and parcel of present

para and are not repeated herein for the sake of brevity.

6. That the contents of Para 6 of the notice

under reply are wrong, incorrect, false and hence

vehemently denied. It is denied that at the time of

relieving the job, your client was assured by our client

that the final amount as per the full and final statement

would be transferred as soon as possible to your client's

account. It is submitted that our client was never liable

to make any payment to your client subject to the full and

final settlement as alleged by your client herein. The

contents of preliminary objections may be read as part

and parcel of present para under reply and are not

repeated herein for the sake of brevity.

7. That the contents of Para 7 of the notice

under reply are wrong incorrect, false and hence

vehemently denied. It is denied that our client had a

malafide intention in retaining the lawful dues of your

Client and INR 12,22,518/- had not been paid by our

Client. It is submitted that your client was not entitled to

claim an amount of INR 12,22,518/- against our client on

Company Appeal (AT) (Insolvency)No. 60 of 2019 4 account of the wilful negligence and default committed on

the part of your client as the same had caused to delay

the execution of the project for three months. The contents

of preliminary objections may be read as part and parcel

of the para under reply and are not repeated herein for

the sake of brevity."

10. The aforesaid reply given on behalf of the 'Corporate Debtor' on 25th July,

2017 was much prior to the Demand Notice issued u/s 8(1) of the 'I&B' Code

dated 5th October, 2017.

11. We find that there was a pre-existing dispute. We are not inclined to

interfere with the Impugned Order. The appeal is accordingly dismissed. No

Costs.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A. I. S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

ss/sk

Company Appeal (AT) (Insolvency)No. 60 of 2019 5