SYNERGY PROPERTY Vs. SMARTCITY (KOCHI) INFRASTRUCTURE PVT LTD

JUDGEMENT

(1.) Under adjudication is an application filed under section 9 of Insolvency and Bankruptcy Code, 2016 (I&B Code 2016, for short) by the Operation Creditor, the detailed grounds have been referred therein. The prayer made is to admit the application and to initiate the Corporate Insolvency Resolution Process under the I&B Code, 2016, by appointing an Interim Insolvency Professional. The Operational Creditor has given the statutory notice as per Section 8 of the I&B Code, 2016 read with the relevant Rules, on 07.01.2017 wherein he has raised the total claim to the tune of Rs.2,01,19,763/-, out of which, the defaulted amount is Rs. 1,58,48,579/-. The Operational Creditor has also filed an Affidavit as per Section 9 (3) (b) of the Code, disclosing that the Corporate Debtor has not issued any notice with regard to the existence of dispute in relation to the unpaid operational debt. The bank certificate and Invoices based on which the claim has been made are also placed on record. The Corporate Debtor has given the reply to the notice which is placed at page 239 of the Application wherein for the first time, the objections have been raised. In para 2(e) , the Corporate Debtor made a reference stating that "in fact, the principal amount claimed in the Demand Notice is only INR, 1,58,48,579/-, while the interest amount illegally applied and arbitrarily demanded for the first time vide the Demand Notice is INR 42,71,183/- constituting as much as 27% of the principal amount demanded".

(2.) The Respondent Corporate Debtor has also filed counter wherein, it has been stated that the contracts which were to be completed by October, 2015, have not been completed within the stipulated time. However, the extensions were granted to the Operational Creditor. Admittedly, there are certain conditions as to the determination of delay and lapses. But, one of the terms of contracts provides that "if the construction duration exceeds for the reason not attributable to the PMC, then, the contract shall be extended and the fee will be paid to PMC for the additional duration on the monthly basis as per agreed monthly drawdown fee plus 10%". The extension of the contract is based on the condition that there are reasons not attributable to the PMC. In other words, the extension of the contract could only be granted when the reasons for delay were not attributed to the PMC. This makes clear that the extension of contracts per se is for the reasons not attributed to PMC. Therefore, the plea that has been taken by the Corporate Debtor is not in accordance with the terms of the contract. Hence, once the extension is given and the work is executed, the Corporate Debtor is liable to pay the dues.

(3.) In the aforesaid circumstances, after having been satisfied that all the requirements under law have been fulfilled, we are inclined to admit the Petition and order the commencement of the corporate insolvency resolution process which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.