IN THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH (COURT-II)

Company Petition No. (IB) – 470/(ND)/2023 IN THE MATTER OF:

Amirsons Timber

3/9A, Industrial Area, Kirti Nagar, Delhi-110015 … Applicant/

Operational Creditor VERSUS Skyline Engineering Contracts (India) Private Limited Plot No. 4, 3rd Floor, Kebar Singh Estate Westend Marg, Said-ul-ajab New Delhi-110030 … Respondent/

Corporate Debtor Section: 9 of IBC, 2016 Order Delivered on: 31.01.2024 CORAM:

SH. ASHOK KUMAR BHARDWAJ, HON’BLE MEMBER (J)

SH. SUBRATA KUMAR DASH, HON’BLE MEMBER (T)

PRESENT:

For the Respondent : Adv. Tarun Rana, Adv. Sharma, Adv. Sunny Pandey

ORDER

The captioned petition has been preferred under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity, the ‘IBC, 2016’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Amirsons Timber, which is stated to be a Partnership firm (for brevity, the ‘Applicant/ Operational Creditor’) praying therein to initiate the Corporate Insolvency Resolution Process against M/s Emaar India Limited (for brevity, the ‘Respondent/ Corporate Debtor/CD’). 2. As averred in the application, the Respondent Skyline Engineering Contracts (India) Pvt. Ltd. is a Company incorporated with CIN U74899DL1991PTC042726, in terms of the provisions of the Companies Act, 1956 having its Registered Office at Plot No. 4, 3rd Floor, Kebar Singh Estate Westend Marg, Said-ul-jab, New Delhi 110030 and is amenable to the jurisdiction of this Tribunal. The Authorized Share Capital of the Respondent is Rs.6,00,00,000/- and its Paid-up Share Capital is Rs.4,95,00,000.

3. In short, the case of the Petitioner (Operational Creditor) is that the Operational Creditor and Corporate Debtor had entered into an agreement vide Purchase orders dated 15.04.2014, 27.11.2014, 06.12.2014, 16.05.2018. 21.05.2018 and 22.05.2018 and Work order(s) dated 18.07.2017, 19.07.2017, 20.07.2019, 24.07.2017, 26.07.2017, 08.08.2017, 11.08.2017, 13.08.2017, 17.08.2017, 24.08.2017, 25.08.2017, 25.08.2017, 28.08.2017, 30.08.2017, 08.09.2017, 16.09.2017, 26.09.2017, 24.05.2018, 28.05.2018, 03.07.2018, 07.07.2018, 01.08.2018, 04.08.2018, 18.06.2018 and 20.12.2019 for the supply of shuttering and scaffolding material. In pursuance of the Work Order, the Operational Creditor commenced the supply of shuttering and scaffolding material on hire basis at the project sites of corporate debtor.

4. It is stated by the Applicant that since the Respondent defaulted in making the payment of operational debt, it had issued a Demand Notice dated 23.05.2023, under Section 8 of IBC, 2016, vide speed at the registered office of the Respondent qua which a Reply dated 05.06.2023 was received by the Applicant.

5. The particulars of unpaid operational debt claimed by the applicant are stated in Part IV of the Application. The Contents of which reads thus:

6. From perusal of the Part-IV of the Application it is observed that the Applicant had claimed Rs. 24,26,36,969.61 as an unpaid operational debt and has claimed the date of 15.02.2023 as the date of default.

7. On issuance of Notice, the Respondent filed its reply espousing therein: -

7.1 The Application is not maintainable in terms of Section 69(2) of the Partnership Act,1932 as it has been filed by the unregistered Partnership firm.

7.2 The address of the Tribunal is mentioned as "National Company Law Tribunal, 5 Esplanade Row (West), Town Hall, Ground and 1st Floor, Kolkata-700001". Besides, the application contains the following averment:

“That the registered office of the Corporate Debtor is situated in State of Kolkata and therefore, this Hon’ble Tribunal has the jurisdiction to entertain and decide this application.”

7.3 The Applicant claimed a substantial amount to the tune of Rs.20,06,87, 708.45 as interest at the rate of 18% per annum. It is pertinent to mention herein that not even under a single alleged invoice, a clause pertaining to claiming of interest has been mentioned, and that too at