Sudhir Sales & Services Ltd vs Comfort Net Traders (India) Pvt. Ltd

Sudhir Sales & Services Ltd. ...Appellant

Versus

Comfort Net Traders (India) Pvt. Limited ...Respondent

Present:

For Appellant : Mr. Nakul Jain, Advocate

ORDER

06.07.2018 Learned counsel appearing on behalf of the appellant

(Operational Creditor) preferred an application under Section 9 of the Insolvency

and Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') for

initiation of 'corporate insolvency resolution process' against the respondent

'Comfort Net Traders (India) Ltd. (Corporate Debtor). By the impugned order

dated 25th April, 2018, the Adjudicating Authority (National Company Law

Tribunal, Special Bench (Court No. 1), New Delhi rejected the application on the

ground of 'existence of dispute'.

The Adjudicating Authority has noted the e-mail dated 7th September,

2010 of Mr. Bhutani, Nussli (Switzerland) Ltd. in regard to deficiencies of

installations and their visit the site on 16th September, 2010, it was realized that

numerous installations was not finished and it is due for completion. -2-

Learned counsel appearing on behalf of the appellant submits that the

defects which were pointed out were removed subsequently and the respondent

by letter dated 29th June, 2016 admitted the dues amount to Rs. 8160382/-

against the work done by the appellant during Commonwealth Games, 2010.

However, from the record and the impugned order, we find that the

'Corporate Debtor' has already instituted the suit against the appellant

(Operational Creditor) with regard to the same transaction and the suit is

pending since prior to issue of the Demand Notice under Section 8(1) of the I&B

Code. For the said reason that the suit is pending and there is existence of

dispute, the Adjudicating Authority rightly refused to entertain the application

under Section 9 of the I&B Code. However, we hold that the finding of the

Adjudicating Authority and observations made by us will not come in the way of

the parties in the pending suits, which may be decided on its merit.

The appeal stands disposed of with the aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) (Insolvency) No. 326 of 2018