Nizamiya Construction Pvt. Ltd vs Thyssenkrupp Industries India Pvt. Ltd

Nizamiya Construction Pvt. Ltd. ...Appellant

Vs.

Thyssenkrupp Industries India Pvt. Ltd. ...Respondent

Present: For Appellant: - Mr. Rajiv Kumar and Mr. D.P. Mohanty, Advocates.

ORDER

05.11.2018─ The Appellant- 'Financial Creditor' has preferred this

appeal against the order dated 20th August, 2018 passed by the

Adjudicating Authority (National Company Law Tribunal), Mumbai

Bench, whereby the application preferred by the Appellant under

Section 9 of the Insolvency and Bankruptcy Code, 2016 ('I&B Code' for

short) has been rejected on the ground of pre-existence of dispute.

2. From the record we find that much before the issuance of demand

notice under Section 8(1) of the 'I&B Code' by the 'Operational Creditor',

the 'Corporate Debtor' by their letter dated 15th March, 2017 intimated

that as per agreement the 'Financial Creditor' was required to test the

functioning but it was not done by the 'Financial Creditor' but by the

third party. The other defects were also pointed out but intimating that

Contd/-..............

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'Nizamiya Construction Pvt. Ltd.' had no compressors for hydro testing

of pipeline and the surprisingly a bicycle hand pump was brought to

carry out the tests.

3. For such failure and in terms of agreement a counter claim was

made by the 'Corporate Debtor' by their letter dated 18th April, 2017.

4. From the aforesaid document, it is clear that there is a pre-

dispute and, therefore, the Adjudicating Authority rightly rejected the

application under Section 9 of the 'I&B Code'.

5. Learned counsel appearing on behalf of the Appellant referred to

an e-mail dated 30th August, 2017 to suggest that the 'Corporate Debtor'

has agreed for settlement of claim at Rs. 3,48,443/- (Rupees Three Lakh

Forty-Eight Thousand Four Hundred Forty-Three Only). When we asked

whether the 'Operational Creditor' intends to settle the claim in terms

with the offer given by the 'Corporate Debtor' on 30th August, 2017,

learned counsel for the Appellant shown inability to accept such offer.

6. In the circumstances, no relief can be granted. The appeal is

dismissed and Interlocutory Application stands disposed of. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial) Ar/uk Company Appeal (AT) (Insolvency) No. 672 of 2018