Parmod Kumar Anand Proprietor Of Anand & ... vs Mbl Infrastructure Limited

Pramod Kumar Anand ...Appellant

Versus

MBL Infrastructures Ltd. Respondent

Present: For Appellant: Mr. Gaurav Mitra and Mr. Adarsh Rai, Advocate. For Respondent: Ms. Anusuya Salwan, Ms. Nikita Salwan, Mr. Abhishek Singh Pundir, Mr. Bankim Garg and Mr. Chaitanya Bansal, Advocates.

ORDER

(Virtual Mode)

10.03.2022: Heard Shri Gaurav Mitra, learned counsel for the Appellant.

This Appeal has been filed against order dated 07.01.2022 passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi (Court

No. III) by which the Application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as 'Code') has been rejected.

2. The Appellant was awarded contract vide Work Order issued on

27.05.2015 by the Corporate Debtor. Invoices were raised by the Appellant

and it is case of the Appellant that payment of four invoices was already made.

The NCLT, Kolkata initiated CIRP proceeding against the Respondent on

30.03.2017. No claim was filed by the Appellant in the CIRP proceedings and

invoice dated 30.09.2017 was issued for an amount of Rs.29,30,296.48 to the

Respondent. In pursuance of CIRP proceedings, the Resolution Plan was

approved on 18.04.2018.

Cont'd.../ 2

3. The Appellant filed the Section 9 application on the basis of two invoices

i.e. first invoice dated 30.19.2017 for an amount of Rs.29,30,296.48 and next

invoice dated 30.11.2018 for an amount of Rs.15,35,349.20. The Adjudicating

Authority has rejected the Section 9 Application observing that there is no

cogent evidence filed by the Operational Creditor in order to substantiate its

case with respect to the Invoices Nos. 5&6 raised on the basis of work executed

by it.

4. Shri Mitra submitted that the invoice was issued on 30.11.2018 because

cause of action only arose after Resolution Plan was approved by the

Adjudicating Authority on 18.04.2018 when Respondent wrote to the

Appellant and he was asked to complete measurement of work and get it

verified by PWD. He submits that because cause of action had arisen

subsequent to the completion of CIRP there was no occasion for the Appellant

to file a claim in CIRP proceedings.

5. Learned counsel for the Respondent refuting the submission of

Appellant submits that even the contract with the PWD was terminated on

23.03.2018 and in fact there was no work order to carry out any work by the

Appellant and Appellant has not filed any claim in the CIRP proceedings. It is

submitted that there are disputes which are pending consideration in the

Arbitration proceedings under Arbitration and Conciliation Act, 1996.

6. Mr. Mitra submits that two invoices which are subject matter of the

Section 9 Application, they are not part of the Arbitration Proceedings.

Company Appeal (AT) (Insolvency) No. 234 of 2022 3

7. We have considered submissions of learned counsels for the parties and

perused the record.

8. From the facts which are on the record, it is clear that for the work which

was carried out by the Appellant two invoices, according to the Appellant, were

issued on 30.09.2017 and 30.11.2018. In so far as invoice dated 30.09.2017

is concerned, it was dated during which period CIRP proceeding was pending

and going on. Appellant having not filed any claim could not have filed Section

9 Application on the basis of said invoice. With regard to invoice dated

30.11.2018 contract of the Respondent was itself terminated on 23.03.2018,

there is no question of carrying out work on the site after termination of

contract of Corporate Debtor. The submission of the Appellant that cause of

action to the Appellant only arose after CIRP proceedings were completed and

Resolution Plan was approved does not commend us because the work was

carried out prior to 18.04.2018 when the CIRP proceeding was not completed

and claim could have been made in the CIRP. We, thus, find no error in the

order of the Adjudicating Authority rejecting application under Section 9.

There is no merit in the Appeal. The Appel is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Archana/nn

Company Appeal (AT) (Insolvency) No. 234 of 2022