An Application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 read with Rule 6 of the Insolvency

and Bankruptcy (Application to Adjudicating Authority)

Rules, 2016.

IN THE MATTER OF:

Ahluwalia Contracts (India) Limited … Operational Creditor/ Applicant.

Versus

Shristi Infrastructure Development Corporation Limited

… Corporate Debtor/ Respondent.

Date of Pronouncement: April 26, 2024.

CORAM:

SMT. BIDISHA BANERJEE, HON’BLE MEMBER (JUDICIAL)

SHRI D. ARVIND, HON’BLE MEMBER (TECHNICAL)

APPEARANCE:

For the Applicant/

Operational Creditor: Mr. Ishaan Saha, Adv.

Mr. Tanish Ganeriwala, Adv.

Ms. R. Goyal, Adv.

For the Respondent/

Corporate Debtor: Mr. Rishav Banerjee, Adv.

Mr. Rajarshi Banerjee, Adv.

ORDER

Per: Bidisha Banerjee, Member (Judicial):

Table of Contents Facts in a nutshell: ................................................................. 3 Applicant’s submissions: ........................................................ 4 Respondent’s submissions per contra: .................................... 7 Response of the Applicant to the allegation of the Respondent: ............................................................................................ 19 Analysis and Findings: .......................................................... 29 Issue Relating to delay in execution of work as per agreement and imposition of Liquidated Damages ............................. 32 On Pre-existing Disputes .................................................... 34 Whether issuance of work completion certificate creates bar the Corporate Debtor from raising any pre-existing disputes ......................................................................................... 37 Our Inference ....................................................................... 42

1. The Court congregated through a hybrid mode.

2. The Learned Counsel, Mr. Ishaan Saha appearing on behalf of the Applicant and Mr. Rishav Banerjee appearing on behalf of the Respondent were heard at length.

3. The instant applicant has been preferred by Ahluwalia Contracts (India) Limited, hereinafter referred to as the “Applicant”/ “Operational Creditor” under Section 9 of the Insolvency and Bankruptcy Code, 2016, for brevity “I&B Code” against Shristi Infrastructure Development Corporation Limited, hereinafter referred to as the “Respondent”/ “Corporate Debtor” seeking the commencement of the Corporate Insolvency Resolution process (for brevity “CIR Process”) in respect of the Corporate Debtor, herein.

4. The amount claimed to be in default is as under:

a. Principal Amount = Rs. 3,62,67,257/- as on 28.01.2018.

b. Interest accrued on principal amount = Rs. 1,87,61,599/-

from 28.01.2018 to 11.12.2020.

c. Total amount claimed to be in default = Rs. 5,50,28,856/-

Facts in a nutshell:

5. The Operational Creditor entered into a contract on 25.04.2012 with the Corporate Debtor for constructing a five-star hotel at New Town in Rajarhat at the contract value of Rs. 85 Crore, which was completed by the Applicant on 31.08.2015, within the stipulated extended time.

6. The Corporate Debtor issued the competition certificate on

07.11.2016 and 13.11.2017, the Corporate Debtor certified the entire amount of work done by the Operational Creditor at Rs. 91,70,78,214/- excluding Security Deposit and held amounts.

7. On 25.07.2019, the Operational Creditor called upon the Corporate Debtor to make payment of the said outstanding amount against which, the Corporate Debtor admitted its liabilities towards the Operational Creditor amounting to Rs.

2,87,44,710/-.

8. On 30.06.2020, the Operational Creditor by its letter raised a demand for Rs. 3,62,67,257/- as an outstanding for the works completed by the applicant on 31.08.2015.

9. The Operational Creditor issued a statutory notice of demand under Section 8 of the I&B Code and under Form 3 of the Insolvency and Bankruptcy (Adjudicating Authority) Rules, 2016 to the Corporate Debtor on 26.09.2020.

10. The Corporate Debtor issued a reply to the demand notice dated

26.09.2020, on 08.10