Techno Power Through Its Sole ... vs Westinghouse Saxby Farmer Limited

Techno Power, ...Appellant Through its Sole Proprietor, Mr. Arun Kumar Bose

Versus

Westinghouse Saxby Farmer Limited ...Respondent

Present:

For Appellant: Mr. Gaurav Gupta, Mr. Samyak Gangwal, Advocates For Respondent:

ORDER

20.09.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the Order dated 19.07.2022 passed

by the National Company Law Tribunal, Kolkata Bench-I, Kolkata. By which

Order, the Adjudicating Authority has rejected the Section 9 Application filed

by the Appellant under Insolvency and Bankruptcy Code, 2016 (IBC in short).

3. Appellant-Operational Creditor was issued two work order from the

Corporate Debtor on 20th October, 2017 and 13th November, 2017. Operational

Creditor in pursuance of the work order, executed the work and thereafter,

wrote several letters for payment. Certain part payments were made by the

Corporate Debtor from time to time. The Appellant issued Section 8 Demand -2-

Notice in reply to which he was informed to give particulars of completion of

work. Thereafter, Section 9 Application was filed which has been rejected.

4. The Adjudicating Authority after hearing the parties came to the

conclusion that work was not complete and some part payments were made

which was accepted by the Operational Creditor giving credence to the case of

the Corporate Debtor that work was not complete.

5. Learned Counsel for the Appellant challenging the Impugned Order

contends that work was completed and several emails and letters were sent

for issuance of completion of work certificate which was not given by the

Corporate Debtor.

6. In the work order, which was issued to the Appellant, clause 9.0 deals

with the payment. When we look into clause 9.0 page 193 of the Appeal Paper

Book, the payment is hedged with certain conditions to be fulfilled. Appellant

himself has annexed several invoices containing the orders for part payments.

The invoices contained directions of the officials of the Corporate Debtor for

part payment indicating that part payment is made against shifting of the

items. There is no dispute that work completion certificate has not been given

to the Appellant although Appellant submits that he has intimated the

Corporate Debtor that he has completed the work and certificate of completion

of work be issued. The Adjudicating Authority after considering the

submissions of Appellant, is of the view that Appellant was not entitled for the

payment since work was not complete. In Section 9 Application, the factual

issues regarding the entitlement of payment are not to be gone into, since

Company Appeal (AT) (Insolvency) No. 1115/2022 -3-

proceedings under Section 9 are not recovery proceeding for recovery of the

dues of the Operational Creditor. When Corporate Debtor in his reply has come

with the case that work was not completed as per the work order and the

Adjudicating Authority has accepted the said defense, we see no reason to

interfere with the Order of the Adjudicating Authority rejecting Section 9

Application. We further observe that it shall be open for the Appellant to take

such remedy as permissible for recovery of dues, if any, in accordance with

law.

With these observations, the Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Mr. Barun Mitra] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No. 1115/2022