Pleasant Valley Development Pvt. Ltd vs Spain Hospitality Pvt. Ltd

Pleasant Valley Development Pvt. Ltd. ...Appellant Versus M/s. Spain Hospitality Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. Abhishek Vikram, Advocate

For Respondent : Mr. Nikhil Jain, Mr. Mandeep Kalra, Mr. Nitesh Srivastva, Mr. Nishant Shankar, Ms. Isha Khurana and Mr. Sandeep Mishra, Advocates

ORDER

06 .08.2019 Having heard Mr. Abhishek Vikram, learned counsel appearing

on behalf of the Appellant and Mr. Nikhil Jain, learned counsel appearing on

behalf of the Respondent and being satisfied with the grounds, the delay of 10

days' time in preferring the appeal is hereby condoned. I.A. No. 2423 of 2019

stands disposed of.

The Appellant filed an application under Section 9 of the 'Insolvency and

Bankruptcy Code, 2016 (for short, 'the I&B Code') against 'M/s. Spaine

Hospitality Private Limited', the Adjudicating Authority by impugned order dated

14th June, 2019 rejected the application on the ground of 'pre-existence of

dispute'.

Learned counsel appearing on behalf of the Respondent brought to our

notice that the reply as was submitted on behalf 'M/s. Spaine Hospitality Private

Limited' (Corporate Debtor') on 28th August, 2017 wherein the counsel on behalf

of the 'Corporate Debtor' raised the dispute about the amount payable to the

Appellant against the rent claimed by the Appellant. 2

It was also submitted that the 'Corporate Debtor' through its reply, notice

was also called upon the Appellant to repay a sum or Rs. 75,00,00/- towards

financial assistance sought for by the Appellant and further a sum of Rs. 3

Crores towards the development carried out in the leased premises.

From the record we find that the Demand Notice u/s 8(1) of the I&B Code

was issued by the Appellant subsequently on 25th October, 2018.

From the aforesaid fact it is clear that there is a 'pre-existing dispute' and

the Adjudicating Authority has rightly rejected the application.

Learned counsel for the Appellant submits that the dispute raised is not

based on record but such submission cannot be accepted as it is not open to the

Adjudicating Authority to decide disputed facts which can be decided only by the

court of competent jurisdiction. The Adjudicating Authority is only required to

notice whether there is a 'pre-existence of dispute' or not and having found that

there is a 'pre-existence of dispute', the Adjudicating Authority had rightly

rejected the application.

As we find no merit in this appeal, it is accordingly dismissed. However,

the order(s) passed by the Adjudicating Authority or this Appellate Tribunal will

not come in the way of the Appellant to move before the appropriate court of law.

[Justice S.J. Mukhopadhaya] Chairperson

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

[ Kanthi Narahari ] Member (Technical) /ns/gc

Company Appeal (AT) (Insolvency) No. 799 of 2019